Datasets:

santoshtyss

/

us-court-cases

like 1

In consolidated negligence actions, defendant Diesel appeals from an order of the Supreme Court, Queens County, dated February 16, 1960, granting the motions of the plaintiff (in Actions 2 and 3) to sever Action No. 2 and remand it to the Supreme Court, Putnam County; and to sever Action No. 3 and remand it to the Municipal Court of the City of New York, Borough of Queens. Said defendant also appeals from an order, dated March 14, 1960, which purports to deny reargument of the motions which resulted in the order first mentioned. The three actions arose out of an automobile collision in Putnam County. Actions 2 and 3 had been consolidated with Action No. 1, which was pending in the Supreme Court, Queens County, after said appellant, a defendant in the three actions, had duly demanded and moved in Action No. 2 for a change of venue from Putnam County to Queens County upon the ground that the plaintiff in said action is a nonresident and that appellant resides in Queens County. Thereafter, Action No. 1 was settled. Order appealed from, dated March 14, 1960, reversed, with $10 costs and disbursements, and motions for severance and remand of Actions 2 and 3 denied. As a matter of statutory right, appellant is entitled to a trial in Queens County (Civ. Prac. Act, § 182; Feitel Bag Co., v. Bobinski, 234 App. Div. 879; Commercial State Bank & Trust Co. of New York v. Ritz, 4 A D 2d 674). No facts have been presented which would justify a remand to Putnam County upon the ground of convenience of witnesses. The said order of March 14, 1960 would be nonappealable if it were, in fact, an order denying reargument. The motion for “reargument” was based, however, upon additional facts, which constituted the motion an application for renewal. An order denying a motion for renewal is appealable (Matter of Band, 273 App. Div. 859). Appeal from original order of February 16,1960, dismissed as academic. Nolan, P. J., Beldock, Kleinfeld and Brennan, JJ., concur; Pette, J., not voting.

Judgment, Supreme Court, New York County (Saralee Evans, J.), entered March 30, 2006, which, insofar as appealed from, upon granting various aspects of plaintiffs motion for summary judgment, awarded plaintiff the sum of $34,667.77 against defendant Ernest Lawrence Group, Inc., unanimously reversed, on the law, without costs, and summary judgment as against defendant Ernest Lawrence Group, Inc. denied. *250Plaintiff commenced this action against Lawrence Bailin, Ernest Lawrence Group, Inc. (the Group), and National Career Centers, Inc. (National), to recover on accounts stated. Bailin and the Group asserted a joint answer and claimed, among other things, that they were not liable to plaintiff because the accounts were based upon services and products contracted for and provided solely to National. National has not appeared in the action. Plaintiff moved for summary judgment on its complaint, asserting that Bailin was the principal of both the Group and National, and that plaintiff had provided goods to defendants pursuant to agreements with Bailin, who acted on behalf of both the Group and National. Plaintiff demonstrated, through the affidavit of its president, that two separate accounts remained unpaid. Specifically, plaintiff sent invoices to the Group between February 26, 2002 and August 29, 2002; no objections were raised to the invoices and an open balance of $26,369.50 existed on the account. Plaintiff also sent invoices to National between November 30, 1999 and November 2001; no objections were raised to the invoices and an open balance of $9,548.70 existed on the account. Bailin and the Group opposed the motion, maintaining that neither Bailin nor the Group contracted with plaintiff, that any services or products were provided for National alone and that neither Bailin nor the Group was a guarantor of National’s debts. These assertions were supported by the affidavit of Bailin. Supreme Court granted plaintiff’s motion and awarded plaintiff summary judgment against the Group and National.* Notably, the court stated that the denials of liability of Bailin and the Group were conclusory and insufficient to create triable issues of fact as to the Group’s account. Judgment was subsequently entered against the Group for the $26,369.50 balance of its account, plus interest and costs, and against National for the $9,548.70 balance of its account, plus interest and costs. The Group appeals from that portion of the judgment which awarded plaintiff damages against it, and we reverse. “An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due” (Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869 [1993], citing, inter alia, Interman Indus. Prods, v R. S. M. Electron Power, 37 NY2d 151 [1975] and Chisholm-Ryder Co. v Sommer & Som*251mer, 70 AD2d 429 [1979]). “An account stated assumes the existence of some indebtedness between the parties, or an express agreement to treat the statement as an account stated. It cannot be used to create liability where none otherwise exists” (M. Paladino, Inc. v Lucchese & Son Contr. Corp., 247 AD2d 515, 516 [1998], citing Gurney, Becker & Bourne v Benderson Dev. Co., 47 NY2d 995, 996 [1979]; see Martin H. Bauman Assoc. v H & M Intl. Transp., 171 AD2d 479 [1991]). Here, the Group denies that an underlying business relationship existed between it and plaintiff and offered evidence in opposition to the motion substantiating this assertion. Accordingly, a triable issue of fact is present regarding whether a basis exists for imposing liability on the Group for an account stated and summary judgment in plaintiff’s favor against the Group should have been denied. Given the Group’s denial of a business relationship with plaintiff, its failure specifically to dispute the individual invoices (CPLR 3016 [f]) is of no import (see Harbor Seafood v Quality Fish Co., 194 AD2d 713 [1993]). Concur—Mazzarelli, J.P., Andrias, Marlow, Buckley and McGuire, JJ. Supreme Court determined that triable issues of fact existed with respect to one $620 invoice that was billed solely to Bailin. That aspect of the order has not been challenged by plaintiff.

In an action by a surviving settlor of an inter vivos trust: (a) to terminate the trust; (b) to declare the trust void; or (e) to invade the trust principal in order to provide adequately for the care and support of the trust’s life beneficiary, the defendant, Jennie Hertzstein, one of the remaindermen-beneficiaries, appeals: (1) from an order of the Supreme Court, Kings County, dated July 8, 1959, denying her motion for judgment on the pleadings dismissing the complaint on the ground that it fails to state facts sufficient to constitute a cause of action; and (2) from another order of said court, dated the same day, granting plaintiff’s motion for summary judgment striking out the answer. Orders reversed, upon the law, with one bill of $10 costs and disbursements; said defendant’s motion for judgment on the pleadings granted and complaint dismissed; and plaintiff’s motion for summary judgment denied. Questions of fact have not been considered. The trust instrument does not contain any power in a surviving settlor to revoke the trust. In such event, this plaintiff may not bring an action either to revoke or terminate the trust (Culver v. Title Guar. & Trust Co., 296 N. Y. 74), nor to enforce the trust (2 Scott, Trusts [2d ed.], § 200.1; 1 Bogert, Trusts and Trustees, § 42), nor to construe the trust (Levy v. Hart, 54 Barb. 248, and cases there cited). In any event, the first cause of action to terminate the trust is insufficient because it is based on the claim that the remainders are contingent. In our opinion they are vested (Healy v. Empire Trust Co., 276 App. Div. 305, affd. 301 N. Y. 620; Stringer v. Young, 191 N. Y. 157). The second cause of action to declare the trust void is insufficient because it is based on the claim that there is an unlawful and improper accumulation of income and because the trust violates the Statute against Perpetuities. Neither contention is valid. There is no provision in the trust instrument which directs the accumulation of income, and there is only one life involved. The third cause of action to invade the trust principal is insufficient because it is based on the claim that trust principal may be invaded. Where there is no power to invade principal given by the trust instrument, the courts have no power to direct such invasion, even where economic circumstances would warrant the exercise of such discretion (Matter of Sullard, 247 App. Div. 761; Matter of Barnett, 182 App. Div. 926, affd. 226 N. Y. 692; Brandt v. Continental Bank & Trust Co., 43 N. Y. S. 2d 255, affd. 267 App. Div. 890; Matter of Solomon, 149 Misc. 551). Nolan, P. J., Beldock, Kleinfeld, Christ and Pette, JJ., concur.

Order, Supreme Court, New York County (Louis B. York, J.), entered on or about November 21, 2005, which, after a nonjury trial, denied defendant Peretz Amir’s counterclaim for a share of legal fees acquired by plaintiff law firm in an underlying action, unanimously reversed, on the law, without costs, and judgment awarded to said defendant in the amount of $960,000 plus 9% interest from February 4, 1998. The Clerk is directed to enter judgment accordingly. This declaratory judgment action was commenced by plaintiff law firm, headed by Irwin Echtman, to set the division of a $2.88 million legal fee among it and the three defendant attorneys from the settlement of a discrimination case. Defendant Aurnou settled and defendant Sharon Amir (Sharon) did not assert any claim to a fee. Sharon is the son of Peretz Amir (Amir), the sole remaining defendant on this appeal. *252Amir is admitted to practice before the Israeli and New York bars, and had an affiliation with plaintiff firm since 1987. The nature of that affiliation is at issue here. Amir contends that he is entitled to one third of the total fee as a “member” of the firm. He alleges that he and the firm had a long-standing agreement, under which he would receive one third the proceeds from all matters that he either brought in or referred to the firm. He contends that he brought the discrimination case to the firm. He argues that the fact his name is listed on the firm letterhead and is included in its Martindale-Hubbell entries proves his status as an associate. In this regard, his positions on the letterheads in evidence are noteworthy. From 1988 through 1990, Amir’s name appeared on the left side, below a line separating Echtman’s name from other attorneys in the firm. It was also below the name of another attorney. In 1994 and 1995, at the time the case in question was referred to the firm, his name appeared on the letterhead below the line. By 1998, both before and after the case was settled, the letterhead listed Amir’s name on the left side just below Echtman’s and above the line separating their names from the names of other attorneys. All of the letterheads clearly denoted that attorneys listed on the right side were “of counsel.” The firm’s Martindale-Hubbell entries for 1994 and 1995 were also in evidence and listed Amir’s name below Echtman’s but above the names of two other attorneys listed as “of counsel.” The firm moved for partial summary judgment declaring that Amir was not entitled to any portion of the fee. The IAS court granted the motion. We reversed that ruling in 2003 and remanded for trial, finding inter alia, triable issues regarding Amir’s relationship with and status within the firm, as well as the nature of the financial arrangements between them with respect to clients and matters referred to the firm by Amir (2 AD3d 183 [2003]). At the trial, Sharon testified that in January 1995, a colleague at his law firm had two people interested in retaining legal counsel with Israeli connections to handle a discrimination case. Sharon called Amir, who was in Israel at the time, and asked if he thought plaintiff could handle the matter. Amir told Sharon to call Echtman directly. Sharon called Echtman and allegedly told him that he had spoken to Amir and wanted to refer these individuals to plaintiff based upon the arrangement between Amir and the firm. Plaintiff agreed and the clients subsequently retained Plaintiff. Echtman testified that Amir’s claim that he was entitled to a one-third fee on any cases he brought into the firm was only *253partially accurate. Echtman stated that, in order to be entitled to a one-third fee, Amir had to actually work on the case. He further testified that Amir had no regular hours, was not on salary and did not maintain a regular office within the firm. Amir testified that while he had no set hours, he worked at the firm daily, doing research and other work. Although not well versed in New York law, he did appear in court on at least two occasions to handle some matters. He testified that he did do some research and investigative work on the discrimination case. The trial court found for Echtman, holding that Amir’s listing in Martindale-Hubbell and on the letterhead did not automatically make him an associate. As Amir had little knowledge of New York law and most of the work he did on the case was of a nonlegal nature, this did not qualify him for a portion of the fee. Amir did not meet the requirements of an associate and thus was not entitled to a fee under these circumstances. The term “associate” is not defined for purposes of ethical or disciplinary rules. In common legal usage, it is defined as “a lawyer in a law firm,” having lesser seniority than a partner (Black’s Law Dictionaiy 132 [8th ed 2004]). The record before us, although in many respects less than ideal, clearly shows Amir’s name on the firm’s letterhead and in the firm’s Martindale-Hubbell listing. This listing was used by the firm to increase its business by indicating that it had an office in Israel, and Amir was the only attorney in the firm admitted to practice in Israel. Moreover, taken together, the letterhead and the listing, as both evolved over time, indicated that Amir enjoyed a senior status in the firm. Indeed, Echtman’s deposition testimony confirmed this senior status. We note that the Martindale-Hubbell listing in evidence at the trial listed Amir as being “of counsel” to the firm. ABA Commission on Ethics and Professional Responsibility Formal Opinion 90-357 (1990) states that “it is not ethically permissible to use the term ‘of counsel’ to designate the following professional relationships: a relationship involving only an individual case, ... a relationship of forwarder or receiver of legal business, ... a relationship involving only occasional collaborative efforts among otherwise unrelated lawyers or firms, . . . and the relationship of an outside consultant.” Thus, plaintiff law firm held Amir out to be either an associate or an attorney acting “of counsel” to the firm. It is undisputed that Amir was admitted to practice in New York. His unfamiliarity with the law in this jurisdiction is of no import in determining his status vis-a-vis the firm and was not *254a proper subject of inquiry in determining that status. Nor was it relevant to quantify the type and amount of work performed by Amir with respect to this case in concluding he was not an associate. There is no question he did some research as well as some type of investigative work, although what exactly either entailed is not clear from the record. Significantly, Echtman at one point told Amir to cease working on the file as a settlement was imminent, thus demonstrating that Amir was in fact doing something on the case. Moreover, defendant Aurnou testified that when he was brought into the case as cocounsel, Echtman discussed the one-third fee arrangement he had with Amir in connection with Aurnou’s retainer. These clients would not have been directed to plaintiff firm were it not for the fact that Amir was associated with it in some capacity, as evidenced by their request for a referral to a firm with Israeli connections. Accordingly, Amir was entitled to his one-third share of the fee from the settlement. In view of the foregoing, we need not address the issue of whether Amir was improperly deprived of a jury trial. Concur— Saxe, J.E, Friedman, Marlow, Buckley and Sweeny, JJ.

Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered April 26, 2006, which, to the extent appealed from as limited by the briefs, denied respondent’s motion for the court’s recusal and for renewal of a prior order, same court and Justice, entered March 24, 2006, which awarded petitioners damages in the principal sum of $1,859,562 and directed a hearing on their request for a turnover of assets to satisfy a prior judgment against a nonparty judgment debtor, unanimously modified, on the law, the facts and in the exercise of discretion, to the extent that renewal is granted and upon renewal the money judgment is vacated, and the issue of the existence and/or amount of the debt owed by respondent to the judgment debtor *255at the time of the petition is referred for a hearing, and as so modified, affirmed, without costs. Jurisdiction in this proceeding was properly found in New York. Notwithstanding the carefully worded affidavits submitted by BKN, its promotional literature boasted that it has offices in this state, and the location of its subsidiary in Rye further compels the. conclusion that the subsidiary conducts the business that BKN would perform were it actually present (see Frummer v Hilton Hotels Intl., 19 NY2d 533, 537 [1967], cert denied 389 US 923 [1967]). Petitioners’ now-defunct judgment debtor, Durham Capital Holdings, was a holder of stock in respondent BKN, evidenced by an unissued stock certificate, a subject of this turnover proceeding (CPLR 5225). The IAS court properly referred to a referee the issue of whether the shares of BKN stock were freely transferrable. The petition established the existence of a debt owed by respondent to the judgment debtor, submitting respondent’s 2001 annual report which stated, under the section denominated “Receivables and Long Term Payables to Related Party,” that “the Company has a payable to Durham Capital Holdings, Inc. in connection with Durham’s assumption of liabilities for animation services rendered by third parties to the Company in the amount of [ ]1,545,000.” The document indicated that the debt would come due in January 2003. Respondent, in opposition to the petition, offered an affidavit by its chief financial officer, asserting that after accounting for moneys owed by Durham to BKN, the net balance due to Durham from respondent was 1,023,000 at the end of BKN’s fiscal year on September 30, 2001, but that the situation had altered by the end of fiscal year 2002, despite the annual report’s failure to so state, so that the only remaining debt owed by Durham to respondent was 178,000. This opposition clearly created, at least, a factual issue as to the amount of the debt BKN owed to Durham as of the date the proceeding was commenced. Even if it had not, however, the additional information provided in the context of the renewal motion, explaining that payments made in October 2001 to Durham and/or its subsidiary, to pay production costs required by its purchase agreement with Durham, established even more clearly the existence of an issue of fact as to the existence and/or the amount of the debt. On this record, we deem it appropriate to reverse the grant of a money judgment and to refer for a fact-finding hearing the question of whether and to what extent respondent owed a debt to Durham on the date this proceeding was commenced (see Mejia v Nanni, 307 AD2d 870, 871 [2003]). *256Inasmuch as this is an equitable proceeding, the jury demand was properly rejected. Nor do we find that the court erred in directing a hearing on the request for a turnover of the stock, at which issues of German law can be explored, as well as the question of whether BKN, which does not appear to have a possessory interest in stock held by its shareholders, has standing to challenge the turnover request. The court did not abuse its discretion in refusing to recuse itself (see Anonymous v Anonymous, 222 AD2d 295, 296 [1995]). Concur—Saxe, J.E, Friedman, Marlow, Buckley and Sweeny, JJ.

Order, Supreme Court, New York County (Judith J. Gische, J.), entered February 17, 2006, which denied plaintiff landlord’s motion for summary judgment on its declaratory judgment complaint, and granted defendant tenants’ cross motion for summary judgment in their favor, unanimously reversed, on the law, without costs, the motion granted to the extent of declaring that the stipulation of settlement executed by the parties as of March 29, 1996 in the summary proceeding entitled Riverside Syndicate, Inc. v Victoria Munroe et al. (Civ Ct, NY County, L&T Index No. 93325/95), and “so ordered” by the court in that proceeding on May 3, 1996 (the consent judgment), is null, void, and of no force or effect, on the ground that it violates Rent Stabilization Code (9 NYCRR) § 2520.13 and is contrary to public policy, and the cross motion denied. Under the consent judgment, the tenants agreed to pay rent in excess of the legal regulated rent on one of the three rent stabilized (and now connected) apartments they occupy in landlord’s building, and to waive their right to challenge the unlawful rent. In exchange, the landlord agreed to waive its right to seek to recover possession of any of the three apartments on the ground that the tenants (who evidently work, have a residence, and are registered to vote in Massachusetts) do not use their apartments as primary residences. The consent judgment also provided that, in the event any of the apartments became deregulated, the rent would not be increased by more than 8% every two years, and the tenants would be offered a renewal lease every two years. *257Because the consent judgment violates public policy by waiving benefits of the Rent Stabilization Law (notwithstanding that it does so to the tenants’ benefit in this instance), it is unenforceable (see Drucker v Mauro, 30 AD3d 37 [2006], appeal dismissed 7 NY3d 844 [2006]). Since the consent judgment’s main objective was illegal, it is void in its entirety (see Rose v Elias, 177 AD2d 415, 416 [1991]). Further, given that the landlord and the tenants are in pari delicto, and the tenants (who seek to keep the consent judgment in force) have already reaped substantial benefits from it (including more than a decade of enjoyment of their renovations to the apartments), we leave the parties as we find them, and do not place any conditions on our invalidation of the consent judgment (see Abright v Shapiro, 214 AD2d 496 [1995]). Finally, because the consent judgment is void as a matter of public policy (not due to fraud, mistake or unconscionability), the statute of limitations (which was not raised on the motion or cross motion) does not bar the instant action on the ground that it was commenced more than six years after the consent judgment was entered (see e.g. 390 W End Assoc. v Harel, 298 AD2d 11, 13 [2002]; Rima 106 v Alvarez, 257 AD2d 201, 203 [1999]). Concur—Mazzarelli, J.R, Andrias, Friedman, Sweeny and Kavanagh, JJ.

Motion by respondent to dismiss appeal from part of an order of the Supreme Court, Queens County, dated September 8, 1960, denied on condition that appellant perfect the appeal and argue or submit it at the February Term, commencing January 30, 1961; appeal ordered on the calendar for said term. The record and appellant’s brief must be served and filed on or before January 23, 1961. Motion by appellant for leave to appeal to the Court of Appeals, from an order of this court entered December 19, 1960, dismissing his appeal from an order of the Supreme Court, Queens County, entered November 1, 1960, denied. On the court’s own motion, its decision handed down December 19, 1960 (ante, p. 652), is amended by striking out the provision granting respondent’s motion to dismiss the appeal from said order of November 1, 1960, and by substituting therefor provisions denying said motion to dismiss with leave to renew upon the argument or submission of the appeal. Said appeal is ordered on the calendar for the February Term, and it will be heard together with the appeal from the original order, dated September 8, 1960. The record and appellant’s brief must be served and filed on or before January 23, 1961. Nolan, P. J., Beldock, Ughetta, Christ and Brennan, JJ., concur.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered August 16, 2005, which denied defendants’ cross motions to dismiss the complaint as time-barred under CPLR 214-a, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly. Appeal from order, same court, Justice and entry date, which granted plaintiff’s motion to amend the complaint so as to add a cause of action for wrongful death, unanimously dismissed, without costs, as academic. In the medical malpractice context, the application of the doctrine of equitable estoppel may not be based upon the same misrepresentation or act of concealment which forms the basis of plaintiffs underlying substantive cause of action. In such circumstances, a plaintiffs allegations “do not establish that [a *258physician], acting with knowledge of prior malpractice, made subsequent misrepresentations in an attempt to conceal his earlier negligence” (Rizk v Cohen, 73 NY2d 98, 105-106 [1989] [citation omitted]). Therefore, the motion court erred in ruling that defendants are equitably estopped from raising the statute of limitations as a defense. Defendants’ failure to communicate the results of decedent’s X ray to him may not form the basis of both the malpractice claim and the application of equitable estoppel (see also Kremen v Brower, 16 AD3d 156 [2005]; Chesrow v Galiani, 234 AD2d 9, 10-11 [1996]). The motion court’s attempt to differentiate the negligence upon which the action is based (namely, the failure to diagnose lung cancer) from the claimed basis for the sought estoppel (i.e., the failure to communicate the results of the x-ray study, as promised by the discharge instructions), must fail. The failure to communicate the results of the X ray was not subsequent to and with the knowledge of a prior failure to diagnose lung cancer; the two failures are interconnected. Under these circumstances, the application of equitable estoppel to preclude defendants from asserting the statute of limitations as a defense was in error. Harkin v Culleton (156 AD2d 19 [1990], lv dismissed 76 NY2d 936 [1990]), relied on by plaintiff, is distinguishable. In Harkin, this Court held certain defendants to be equitably estopped from asserting the statute of limitations as a defense where the plaintiff was mistakenly diagnosed as having a malignant tumor, as a consequence of which he unnecessarily underwent radiation and chemotherapy, and defendant doctors discovered, as a result of a CT scan taken two years later, that the tumor was benign, and that the treatment then being administered was inappropriate, but allegedly concealed this fact from the plaintiff. In view of the applicable statute of limitations defense, defendants’ motion should have been granted, and plaintiff’s application to amend the complaint so as to add a wrongful death claim is academic. Concur—Saxe, J.E, Nardelli, Buckley, Gonzalez and Sweeny, JJ.

Order, Supreme Court, New York County (Edward J. McLaughlin, J.), entered May 18, 2006, which denied defendant’s motion to be resentenced, unanimously reversed, on the law, and the matter remanded to Supreme Court for it to exercise its discretion and determine, either on the current record or on the basis of any additional submissions the parties might make, whether substantial justice dictates that the application should be denied, and, if not, to inform defendant of the new sentence it would impose. The motion court erred in denying, on the apparent ground of ineligibility, defendant’s motion to be resentenced in accordance with the 2005 Drug Law Reform Act (L 2005, ch 643). Since defendant is a person serving a sentence for an A-II drug felony, he is eligible for resentencing pursuant to the Act, and, as the People concede, he is thus entitled to a remand for further proceedings on the motion as indicated (see People v LaFontaine, 36 AD3d 474 [2007]; People v Arana, 32 AD3d 305 [2006]). As in those cases, we reject as meritless defendant’s contention that the motion should be reassigned to a different Justice, and we decline to reach any other issues. Concur—Saxe, J.E, Friedman, Sweeny, McGuire and Malone, JJ.

*260Order, Supreme Court, New York County (Milton A. Tingling, J.), entered February 8, 2006, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered July 12, 2006, which denied plaintiffs motion for reargument, unanimously dismissed, without costs, as taken from a nonappealable paper. There is no evidence probative of what caused plaintiff to trip and fall on the premises of defendant Art Students League. Plaintiff merely surmised, after seeing metal “sticking out” in the hallway two weeks after the accident, that the protruding metal had caused her fall. She never testified that an uneven transition in the floor precipitated her fall, the theory she now relies upon, and accordingly advances no nonspeculative ground for such causation (see Kane v Estia Greek Rest., 4 AD3d 189 [2004]). To the extent plaintiff attributes her fall to the uneven surface of the floor in the hallway, based on “circumstantial evidence,” her arguments are unavailing (compare Schneider v Kings Highway Hosp. Ctr., 67 NY2d 743 [1986]). We reject plaintiffs effort to characterize the motion dated March 8, 2006 as one for renewal after it was sub judice. Concur—Saxe, J.P, Friedman, Sweeny, McGuire and Malone, JJ.

Judgment, Supreme Court, New York County (Doris Ling-Cohan, J.), entered November 23, 2005, which denied petitioner police officer’s application to annul respondent Board of Trustees’ determination denying petitioner accidental disability retirement benefits, and dismissed the petition, unanimously affirmed, without costs. Petitioner claims that his disabling trip and fall was caused by a crack in the station house floor and a broken wooden bannister that gave way when he grabbed hold of it in an attempt to break the fall. Where, as here, the denial of accidental disability retirement benefits is the result of a tie vote by the Board of Trustees, such denial can be annulled only if the applicant is entitled to accidental disability benefits as a matter of law (Matter of McCambridge v McGuire, 62 NY2d 563, 568 [1984]). Given the various accounts of the incident that do not unvaryingly mention a crack in the floor, the absence of any evidence as to the exact size and location of the crack, and the absence of any work or repair order for the floor, it cannot be said as a matter of law that petitioner’s trip and fall was caused by a crack in the floor rather than his own misstep (see Matter of Starnella v Bratton, 92 NY2d 836, 839 [1998]; Matter of Doyle v Kelly, 8 AD3d 125 [2004]). Nor can it be said as a matter of law that a broken bannister contributed to petitioner’s fall. The Board was entitled to credit contemporaneous accounts that did not mention a defective bannister as a factor in petitioner’s fall and discredit the subsequent affidavits that did (see Matter of Gray v Kerik, 15 AD3d 275 [2005]). Certainly, the subsequent statements are not, as a matter of law, more reliable than the earlier ones (see Matter of Morgan v Kerik, 305 AD2d 288 [2003], lv denied 1 NY3d 507 [2004]). Concur—Saxe, J.P., Friedman, Sweeny, McGuire and Malone, JJ.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered September 29, 2005, which, in an action for personal injuries sustained by a worker at a construction site, insofar as appealed from as limited by stipulation, granted second third-party defendant Woodworks Construction Company, Inc.’s motion for summary judgment dismissing second third-party plaintiff Hird Blaker, Inc.’s claim for contractual indemnification, unanimously affirmed, with costs. The unsigned contract, denominated a purchase order, between subcontractor Hird and sub-subcontractor Woodworks, plaintiffs employer, specifically requires Woodworks to “receive, distribute and install all work” in accordance with the terms of the attached “trade subcontract” between Hird and the general contractor. We hold that this language does not incorporate the provisions of the trade subcontract relating to indemnification. ‘ [^Incorporation clauses in a construction subcontract, incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to prime contract provisions relating to the scope, quality, character and manner of the work to be performed by the subcontractor” (see Bussanich v 310 E. 55th St. Tenants, 282 AD2d 243, 244 [2001]). Nor is such *263incorporation accomplished by the portion of the “scope of work” clause of the trade subcontract requiring second-tier subcontractors like Woodworks to “maintain insurance equal to that required by this [sub]contract and be bound by the same terms and conditions as those of th[is] subcontract.” Consistent with this reference in the trade subcontract to second-tier contractors, and separate from the above reference in the purchase order to the trade subcontract’s requirements relating to the receipt, distribution and installation of work, the purchase order obligates Woodworks “to comply with ... insurance coverage required by [the general contractor],” but, as there is no mention of indemnification and no reference to the trade subcontract, we hold that such obligation to obtain insurance does not entail an obligation to indemnify. While the purchase order is ambiguous in not setting forth the general contractor’s “insurance coverage require[ments],’’ any such requirements clearly cannot be construed so broadly as to require Woodworks to provide indemnification other than in the insurance context, i.e., obtaining insurance naming the owner and other contractors as additional insureds (see generally Hooper Assoc. v AGS Computers, 74 NY2d 487, 491-492 [1989] [promise to indemnify should not be found unless clear]). Bird appears to concede that Woodworks obtained the required insurance. We have considered Bird’s other arguments and find them unavailing. Concur—Saxe, J.E, Friedman, Sweeny, McGuire and Malone, JJ.

*265Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered September 9, 2005, convicting defendant, after a jury trial, of two counts of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of seven years, unanimously affirmed. The court responded meaningfully to the deliberating jury’s request to hear defendant’s testimony as to whether he “had drugs” when it limited the read back to defendant’s denial that the police recovered a plastic bag of drugs from him, while declining to read the immediately preceding portion of defendant’s testimony concerning the officer’s search of defendant’s person (see People v Almodovar, 62 NY2d 126, 131-132 [1984]). The court’s interpretation of the note, which called for very specific testimony, was reasonable. The record fails to support defendant’s claim that the preceding testimony should have been included in the read back, and the court’s denial of defendant’s request to add such testimony did not cause any prejudice (see People v Lourido, 70 NY2d 428, 435 [1987]). To the extent that defendant is raising a constitutional claim, such claim is unpreserved and we decline to review it in the interest of justice. Were we to review such claim, we would reject it. Concur—Andrias, J.E, Marlow, Sullivan, Gonzalez and Kavanagh, JJ.

Order, Supreme Court, New York County (Thomas A. Stander, J.), entered August 31, 2006, which, inter alia, granted plaintiffs cross motion to enforce the parties’ stipulated settlement, unanimously affirmed, with costs. The court properly determined that the Peluso & Touger law firm lacked standing to submit a motion on defendants’ behalf to vacate the stipulated settlement (see Dobbins v County of Erie, 58 AD2d 733 [1977]; Szuldiner v City of New York, 18 AD2d 897 [1963]; and see Ottaviano v Genex Coop., Inc., 15 AD3d 924 [2005]; cf. EIFS, Inc. v Morie Co., 298 AD2d 548 [2002]; Diamadopolis v Balfour, 152 AD2d 532 [1989]). No exception to these rules is warranted in this case, particularly since the firm which sought to be substituted and filed the motion did not in fact represent all of defendants, yet purported to make the motion on their behalf. Although Peluso & Touger was without standing to move on defendants’ behalf, the court properly considered the firm’s submissions on behalf of defendants who had belatedly consented to its substitution as their counsel, in opposition to plaintiffs cross motion to enforce the settlement, and correctly found that the parties freely entered into the settlement after extensive negotiations and that it should therefore be enforced. Although defendants now challenge certain terms of the settlement, the settlement, stipulated on the record immediately before the matter was to be tried, contains an arbitration provision permitting the court to consider and determine any dispute. We have considered defendants’ remaining contentions and find them unavailing. Concur—Saxe, J.P, Friedman, Sweeny, McGuire and Malone, JJ.

In an action to recover damages for personal injuries, the four cab corporate defendants, other than Judy Cab Corp., appeal from an order of the Supreme Court, Kings County, dated June 20,1960, granting plaintiff’s motion to examine before trial the five cab corporations. The appeal is from the entire order except that the Boda and Carien corporations do not appeal as to Items 15, 18 and 21 in the order. Order modified by striking out as to the four appellants all of the items set forth therein, except: (a) Item 5, but this item is limited to the date of the alleged accident and a period of one year immediately prior thereto; (b) Item 9, but this item is limited to a period of one year immediately preceding the date of the alleged accident; and (e) Items 15, 16, 18 and 21; and by striking out as to appellants the last decretal paragraph directing the production of books, records and papers. As so modified, the order, insofar as appealed from, is affirmed, without costs. In our opinion, the items eliminated are not relevant and material to the issues raised by the pleadings (cf. Mangan v. Terminal Transp. System, 157 Misc. 627, affd. 247 App. Div. 853, motion for leave to appeal denied 272 N. Y. 676; Geletucha v. 222 Delaware Corp., 7 A D 2d 315). The examination shall proceed on 10 days’ written notice or on any other date mutually fixed by the parties. Nolan, P. J., Beldock, Christ, Pette and Brennan, JJ., concur. [24 Misc 2d 746.]

In an action by the owner of real property against the holder of a bond and mortgage purporting to have been executed by such owner, for a judgment: (a) declaring that the bond and mortgage are forgeries, that the mortgage is null and void and that it is not a valid and subsisting lien upon plaintiff’s property; and (b) directing defendant to deliver said bond and mortgage to plaintiff for cancellation; in which the defendant has counterclaimed for judgment declaring that the bond and mortgage are valid and that the mortgage is a subsisting lien upon plaintiff’s property, the plaintiff appeals: (1) from a judgment of the Supreme Court, Westchester County, rendered May 9, 1960 (and entered May 11, 1960), after a nonjury trial, dismissing his complaint and declaring that the mortgage is a valid and subsisting lien on his property and that its terms are sufficient to create the debt secured by it; and (2) from an order of said court, made the same day, denying plaintiff’s motion, pursuant to section 549 of the Civil Practice Act, to set aside the decision and for a new trial. The judgment and order are incorporated in one document. Judgment (as embraced in the second, third, fourth and fifth decretal paragraphs of the combined judgment and order) reversed on the law and the facts, without costs, and judgment directed dismissing the defendant’s counterclaim and, as prayed for in the complaint: (1) declaring that the mortgage herein is null and void and not a valid or subsisting lien upon plaintiff’s real property described in the complaint; (2) directing defendant to deliver said bond and mortgage to the plaintiff for cancellation; (3) directing the County Clerk of Westchester County to cancel said mortgage of record; and (4) enjoining defendant from transferring, selling or assigning said bond and mortgage and from taking any action to foreclose said mortgage or to collect the amount purporting to be due under said bond and mortgage. Findings of fact inconsistent herewith are reversed and new findings are made as indicated herein. Appeal from order (as embraced in the first decretal paragraph of the combined judgment and order) dismissed as academic. It was conceded and established upon the trial that the indorsement on the $6,000 check delivered by defendant on the security of the bond and mortgage, and the signature on the bond were forgeries of the plaintiff’s name. It was also proved that plaintiff never received any part of the $6,000 advanced by defendant, nor any other consideration from the defendant. It further appears that, while plaintiff did sign his name to the instrument purporting to be a mortgage on his real property, he never intended to sign a mortgage and that he was deceived into signing it. Plaintiff, therefore, established a prima facie ease (cf. Marden v. Dorthy, 169 N. Y. 39); and, since *799defendant failed to offer any proof to rebut it, plaintiff is entitled to judgment in his favor. Beldock, Acting P. J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur.

In a negligence action against a general contractor, George Rosen & Son, Inc., to recover damages for the death of plaintiff’s intestate, in which the general contractor as third-party plaintiff sues as third-party defendants the Palco Concrete Company and Lorimer & Rose, its subcontractor and architects, respectively, the general contractor appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Queens County, entered November 23,1959, after a jury trial, as dismissed its third-party complaint, against the subcontractor and architects at the end of the case and before the submission of the case to the jury with respect to it. The jury’s verdict was in favor of plaintiff against the general contractor for the sum of $151,189. After the entry of judgment thereon for $192,250.33, the general contractor effected a settlement of such judgment with the plaintiff for a substantially lesser sum. The general contractor now appeals from the judgment insofar as its third-party complaint has been dismissed against the third-party defendants, the subcontractor and the architects. The latter contend they are not liable to the general contractor because, despite its settlement with the plaintiff, it was not liable to the plaintiff, or, if it was, that its liability could be founded only on its active affirmative negligence. Judgment insofar as appealed from affirmed, with costs. No opinion. Nolan, P. J., Beldock, Ughetta, Kleinfeld and Christ, JJ., concur.

In an action by the infant plaintiff to recover damages for personal injuries sustained by him due to the alleged negligence of the defendant, and by his father to recover damages for loss of the infant’s services and for medical expenses incurred, the defendant appeals from a judgment of the Supreme Court, Kings County, entered October 30, 1959, after a jury trial, upon a verdict of $125,000 for the infant and a verdict of $25,000 for the father. Judgment insofar as it is in favor of the infant plaintiff, Matthew Israelson, affirmed, without costs. Judgment insofar as it is in favor of the father, Nathan Israelson, reversed on the facts and, as to said plaintiff the action is severed and a new trial is granted, with costs to abide the event, unless, within 10 days after the entry of the order hereon, he shall stipulate to reduce the verdict in his favor to $10,000, in which event the judgment with respect to him, as so reduced, is affirmed, without costs. The accident happened immediately after the infant plaintiff, a passenger, had departed from one of the defendant’s railway ears at the Tompkins Avenue station in Brooklyn. Upon the train conductor’s closing of the gate of the car from which the infant plaintiff had just made his exit, a schoolmate passenger grabbed onto and held said plaintiff’s hand. The train started to leave the station and to proceed on to its next scheduled stop, and said plaintiff was dragged onto the catwalk at the end of the Tompkins Avenue station platform. These events occurred in the presence of the train conductor or guard. Under the circumstances, we believe it was within the province of the jury to find that the guard’s signal to start the train or, if it had started, his failure to stop it by pulling the emergency cord, constituted negligence. It is also our opinion, that while the amount of the verdict for the infant plaintiff is supported by the record, the amount of the verdict for the father is not; it is grossly excessive. Nolan, P. J., Christ, Pette and *800Brennan, JJ., concur; Beldock, J., dissents and votes for the unconditional reversal of the judgment as to both plaintiffs and to grant a new trial, on the ground that the verdicts are contrary to the weight of the credible evidence.

In a consolidated proceeding to review the real estate tax assessments on petitioner’s real property for the four fiscal years 1955-56,1956-57,1957-58 and 1958-59, petitioner appeals from an order of the Supreme Court, Queens County, dated May 11, 1959, which reduced the assessments for each of said four years to a total value of $410,000 for the land and building. The assessed land value was .$120,000, which Special Term did not disturb. It reduced the assessment on the building to $290,000, making a total assessment of $410,000 for the real property for each of the fiscal years. Petitioner contends that these assessments should be further reduced and that the evidence justifies further reductions. Order modified on the law and the facts: (a) by adding to the first decretal paragraph the further reduced assessed valuation of $255,000 for the building or improvements upon the real property for each of the fiscal years 1955-56, 1956-57, 1957-58 and 1958-59; (b) by striking out from said paragraph -the total assessed valuation of $410,000 upon the real property for each of said fiscal years; and (e) by substituting for such total assessed valuation a further reduced total assessed *801valuation of $375,000 upon the real property for each of said fiscal years. As so modified, order affirmed, without c-osts. Findings of fact inconsistent herewith are reversed and new findings are made as indicated herein. In our opinion, there was sufficient credible evidence to show that, for each of the fiscal years mentioned, the actual, fair and true assessed valuation of petitioner’s real property should he in the further reduced amount here set forth. Nolan, P. J., Beldock and Brennan, JJ., concur; Ughetta and Kleinfeid, JJ., dissent and vote to affirm.

In an action by an employee of a subcontractor on a building under construction, to recover damages for personal injuries sustained when he fell from a ladder which slipped or shifted, the defendant Ellis Chingos Construction Corp. appeals from a judgment of the Supreme Court, Kings County, entered March 21, 1960, on a verdict of $18,500 in favor of plaintiff against it, after a jury trial. Judgment reversed on the law, with costs, and complaint dismissed. No questions of fact were considered. The record does not disclose who owned or furnished the movable, makeshift ladder here involved. The proof adduced does not support a finding that said defendant, the Chingos Corporation, which was one of several prime contractors on the job, was the general contractor chargeable with the duty of providing a reasonably safe ladder as a common passageway. The ladder, which had been on the premises for a period of two days prior to the happening of the accident, may have been supplied by plaintiff’s employer, in which event said defendant would *802not be liable (Zucchelli v. City Constr. Co., 4 N Y 2d 52; Iacono v. Frank & Frank Contr. Co., 259 N. Y. 377). Upon this state of the record, plaintiff’s reliance on our decision in Tiller v. Tishman Co. (3 A D 2d 769), is misplaced. There, the record on appeal discloses that a stationary ladder, which was the only means of access to the roof, had been used for several weeks by employees of identified subcontractors of the defendant which was operating under a contract for the “ general construction ” of the building. In that factual situation the defendant there could be regarded as a general contractor with respect to the injured plaintiff. Beldock, Acting P. J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur. [22 Misc 2d 269.]

In a proceeding under article 73 of the Civil Practice Act: (a) to annul the determination of respondent Smith, the Town Clerk of the Town of Greenburgh, and the determination of the respondents Vetrano, Coyle, Massaro, Suehin and Richman, constituting the Town Board, denying without a hearing the petitioner’s application for a taxicab driver’s license under section 5 of the Taxicab Ordinance of said town; (b) to compel respondent Sheridan, the town Chief of Police, to approve the application; and (e) to compel the Town Clerk and the Town Board to issue the license, petitioner appeals from an order of the Supreme Court, Westchester County, dated August 15, 1960, dismissing his petition on the merits. Order reversed without costs, and proceeding remitted to the respondents: (a) for the purpose of having the respondent Chief of Police conduct appropriate hearings on notice; and (b) for the purpose of having said respondent and the other respondents make their respective determinations on the basis of all the proof which may be adduced at such hearings. The petitioner and the respondents should submit, at such hearings, all the pertinent evidence as to petitioner’s general character and fitness. Since any determination by the respondent Chief of Police approving or disapproving petitioner’s application, and since any subsequent determination by the other respondents granting or denying the application, are of a judicial nature, due process requires that appropriate hearings first be held for the purpose indicated (Matter of Hecht v. Monaghan, 307 N. Y. 461). Nolan, P. J., Beldock, Kleinfeid, Christ and Pette, JJ., concur.

In an action to recover damages for personal injuries suffered by plaintiff, an employee of Knickerbocker Construction Corp., the lathing subcontractor on a building construction job, against two defendants: Cauldwell-Wingate Co., the general contractor, and A. J. McNulty Steel Construction Co., the steel subcontractor, in which the general contractor asserted a cross complaint against the steel subcontractor, the general contractor appeals, as limited by its brief: (1) from a judgment of the Supreme Court, Suffolk County, dated February 1, 1960, after a jury -trial, in favor of plaintiff against it; and (b) from so much of a resettled judgment of the same court, dated April 27, 1960, as is in favor of plaintiff against it. Appeal from the original judgment, dated February 1, 1960, dismissed, without costs. No appeal lies from such judgment; it was superseded by the resettled judgment. Resettled judgment, insofar as appealed from, reversed on the law, with costs to the defendant Cauldwell-Wingate Co., payable by the plaintiff; and complaint against said defendant dismissed. The findings of fact implicit in the jury’s verdict were not considered. While the general contractor originally appealed from the portion of the resettled judgment which dismissed its cross complaint against the steel subcontractor, the general contractor in its brief withdrew its appeal therefrom. The judgment in this respect, therefore, remains unimpaired, and there is no authority or need to affirm it as requested by said subcontractor. The undisputed evidence was as follows: Plaintiff, an employee of the lathing subcontractor on a building construction job, was brought by his foreman to the superintendent of the general contractor, at such superintendent’s request, for the purpose of working for said general contractor for the day. The superintendent instructed plaintiff to aid another workman, who was in the employ of the steel subcontractor but who was also working for the general contractor for the day. Plaintiff’s work was to hold reinforcing rods or dowels in place while the other workman welded them onto steel beams. The work was done at various places on a certain floor. During the course of the day the superintendent came to the men several times and told them what to do and where to do it, and they complied. Plaintiff was paid for the day’s work by the lathing subcontractor. His foreman (that is, the foreman in the employ of such subcontractor) testified that on the day in question plaintiff “was strictly Cauldwell-Wingate [the general contractor], he wasn’t Knickerbocker ” [the lathing subcontractor]. Plaintiff sustained burns in his eyes from the welding work. On the evidence, plaintiff as a matter of law was under the general contractor’s exclusive control and represented its will in all details of the work, and such contractor was plaintiff’s special' employer. Therefore, plaintiff’s sole remedy for his injuries was to seek compensation under the Workmen’s Compensation Law (see Workmen’s Compensation Law, §§ 10, 11; Stone v. Bigley Bros., 309 N. Y. 132; Matter of De Foyer v. Cavanaugh, 221 N. Y. 273; Irwin v. Klein, 271 N. Y. 477). The work in question being hazardous as defined in section 3 of the Workmen’s *803Compensation Law, the obligation to secure payment of compensation was imposed by the statute upon the employer, the general contractor (see Workmen’s Compensation Law, § 2, suhd. 3; §§ 10, 50). Therefore, the burden was on the plaintiff to plead and prove that the general contractor, as the employer, had failed to secure the payment of compensation, so as to make operative the exception in section 11 of the Workmen’s Compensation Law, under which an injured employee may elect to maintain an action in the courts for damages (Kuhn v. City of New York, 274 N. Y. 118, 128-129; Gardner v. Shepard Niles Crane & Hoist Corp., 268 App. Div. 561, affd. 296 N. Y. 539; Morris v. Muldoon, 190 App. Div. 689, affd. 229 N. Y. 611; Artonio v. Hirsch, 3 A D 2d 939; Lazar v. Steinberg, 269 App. Div. 760). Plaintiff did not so plead, nor was any such proof adduced. Nolan, P. J., Beldock, Christ, Pette and Brennan, JJ., concur.

Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered February 15, 2006, which, in this action involving a dispute over a real estate brokerage fee, inter alia, granted plaintiffs motion for summary judgment, declaring the cobrokerage agreement at issue unenforceable, unanimously affirmed, with costs. Although it is true that defendant-appellant as an attorney is authorized to act as a real estate broker under Real Property Law § 442-f, that statute does not confer upon him rights *268greater than those of a licensed broker, and a licensed broker may not recover a commission based on a cobrokerage agreement involving an unlicensed cobroker (see Real Property Law §§ 442, 442-d; and see Siegel v Henry Fippinger, Inc., 264 App Div 203, 204 [1942]; Meltzer v Crescent Leaseholds, Ltd., 315 F Supp 142 [SD NY 1970], affd 442d 293 [1971]). The intent of the licensing requirement under the Real Property Law, i.e., “to protect the public from inept, inexperienced, or dishonest persons who might perpetrate or aid in the perpetration of fraud” (Kavian v Vernah Homes Co., 19 AD3d 649, 650 [2005]), would be undermined if such cobrokerage agreements were enforceable, even in part. Concur—Andrias, J.E, Marlow, Sullivan, Gonzalez and Kavanagh, JJ.

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered May 10, 2004, convicting defendant, after a jury trial, of burglary in the third degree and five counts *269of possession of burglar’s tools, and sentencing him, as a second felony offender, to concurrent terms of 3 to 6 years on the burglary conviction and 1 year each on the misdemeanor convictions, unanimously affirmed. The uncontested facts adduced at the suppression hearing established that on August 23, 2004, at approximately 5:40 p.m., the police responded to a report that two laptop computers had just been stolen from a seventh floor office at 118 West 22nd Street in Manhattan. When they arrived, they were met by a Ms. Iwakawa-Grieve who told them that about 10 minutes earlier a man had come into her office without permission. Because access to the floor was limited to tenants with keys, he was asked to leave and did so. After the man was observed leaving the building, two laptops were determined to be missing. Ms. Iwakawa-Grieve told the police that her colleague, a Mr. Cooley, who was in the office at the time, had left the office and was following the man. While the police were talking to Ms. Iwakawa-Grieve, Mr. Cooley, using his cellular telephone, called to report that he had followed the man into the subway and onto a southbound F train. Approximately 10 minutes later, another police officer responded to the Broadway/Lafayette Street subway station where Mr. Cooley, who had asked the conductor to close the subway doors and call the police, pointed out defendant, who was sitting alone in a closed subway car holding a black bag later determined to contain burglar’s tools. Approximately an hour later, the police took Ms. Iwakawa-Grieve to the subway station where she identified defendant as the man she had seen in her office. The showup identification at the subway station was not unduly suggestive. As recognized by the suppression court, showup identifications are generally suspect and must be scrutinized very carefully for unacceptable suggestiveness and unreliability (People v Duuvon, 77 NY2d 541, 543 [1991]). However, factors such as Ms. Iwakawa-Grieve’s running account of Mr. Cooley’s pursuit of the suspect, via cell phone, and her natural expectation that she was going to see someone in custody as a result of that pursuit, did not render the ensuing identification impermissibly suggestive. As the suppression court found, this scenario did not present “the kind of inherent suggestiveness—even if it were police arranged—that requires a court to step in. That’s simple common sense” (see People v Gatling, 38 AD3d 239, 240 [2007]). The court also noted that although the distance from the scene of the crime to the subway station was about two miles and not just around the corner, as was the case in Duuvon, defendant had not been dragged, literally or figuratively, back to *270the scene of the crime or some other place, but had been identified where he was arrested. Finally, as to the timeliness of the showup, the Court of Appeals has declined to draw a bright-line rule and has left the appropriate time period to be determined on a case-by-case basis (People v Brisco, 99 NY2d 596, 597 [2003]). Given the circumstances, any delay here did not negate the reasonableness of the police conduct. Concur—Andrias, J.P., Saxe, Buckley, Gonzalez and McGuire, JJ.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered October 19, 2005, which, to the extent appealed from as limited by the briefs, denied the motion of defendant Archdiocese to dismiss the causes of action against it pursuant to CPLR 3211 (a) for failure to state a cause of action and as barred by the applicable statute of limitations, unanimously reversed, on the law, without costs, the motion granted and the second and third causes of action dismissed as to defendant Archdiocese. The Clerk is directed to enter judgment accordingly. Plaintiff’s claims sounding in respondeat superior and negligent supervision are based on the premise that because archdiocesan priests and pastors are modestly paid and the Archdiocese knows that priests accept money and things of value from their parishioners, it was reasonably foreseeable that Monsignor Woolsey, the pastor of St. John the Martyr Church, would exercise undue influence over his elderly parishioner, Ms. Cale, to obtain more than $490,000 from her for his own benefit. However, deeming such allegations to be true and according plaintiff every favorable inference, such conclusory allegations are insufficient to show that the Archdiocese knew or should have known of Monsignor Woolsey’s propensity to commit the tortious acts alleged. The failure to establish this necessary element of a negligent supervision claim negates the employer’s liability as a matter of law (see Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 161 [1997], cert denied 522 US 967 [1997], lv dismissed 91 NY2d 848 [1997]). Moreover, the Monsignor’s alleged tortious conduct, which may be character*271ized as exercising undue influence, overreaching, fraud or even theft, was not in furtherance of archdiocesan business and was a clear departure from the scope of his employment, having been committed for wholly personal motives (see N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 [2002]). Concur—Mazzarelli, J.E, Andrias, Sullivan and McGuire, JJ.

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered August 21, 2006, which dismissed this turnover proceeding, unanimously reversed, on the law, with costs, and the petition granted. *272Petitioner obtained a money judgment of $2,059,584.62 against respondents Joel Soren and Duty Free Apparel in Federal District Court for trademark infringement. Soren and Duty Free Apparel thereafter entered into a settlement agreement with petitioner under which they could satisfy their obligation under the judgment by paying a total of $75,000, $25,000 upon execution of the agreement and 10 monthly $5,000 installments thereafter. The settlement agreement provided that in the event respondents defaulted under its terms, petitioner would be released from the settlement agreement and again be entitled to seek enforcement of the entire money judgment against them. It is not disputed that respondents materially breached the settlement agreement by failing to pay the installments after the first two. Nevertheless, respondents claim that petitioner may not be released from the settlement agreement because it did not provide notice of default strictly in accordance with the procedure set forth in paragraph 3 of the agreement. Paragraph 2 of the settlement agreement provides that upon respondents’ default in payment, petitioner “shall give written notice of such default by delivering such written notice to the address provided in paragraph 3 of the Settlement agreement,” and that if petitioner gives such written notice and respondents fail to cure the breach within seven days of receipt of the notice, petitioner was entitled to collect or execute upon the judgment. However, respondents look to the agreement’s paragraph 3, which concerns notice generally rather than specifically in relation to notice of default, and states that notice “shall be given by sending a facsimile, followed by confirmation sent by US Mail” to the specified individual at a specified address. There is no dispute that the notice of default was sent to, and received by, the named individual. Respondents simply rely on the lack of a fax of the same letter to avoid what would otherwise be indisputable: petitioner’s release from the settlement agreement and reinstatement of their money judgment against respondents, less any amounts paid. We do not view the lack of a fax of the notice of default as barring exercise of petitioner’s rights upon respondents’ default. Since the notice provision of paragraph 2 applies specifically to notices of default, while paragraph 3 is a more general directive, the mailing in accordan.ce with paragraph 2 is sufficient. In any event respondents received effective notice of default (see Rower v West Chamson Corp., 210 AD2d 7 [1994]). The point of specifying methods by which a notice of default is to be given is, fundamentally, to ensure that the putative defaulter has actual *273notice and an opportunity to protest the claim of default or, if so provided, to avail itself of an opportunity to cure the default, if any. Such notice and opportunity was provided here. Respondents rely on cases in which compliance with the particular provisions at issue was a condition precedent to the formation of the contract, so that a failure to comply would preclude a party from relying upon or enforcing any other term (see Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685 [1995]; Jungmann & Co. v Atterbury Bros., 249 NY 119 [1928]). In the matter now before us, however, the provision regarding sending a fax in addition to the mailing was not such a condition precedent. Moreover, respondents should not be permitted to compel enforcement of a settlement agreement the material terms of which they willfully breached (see generally 13 Corbin on Contracts § 68.2). Inasmuch as it is undisputed that respondent Soren set up a new company, respondent Sample Sale Wholesalers, to operate the business formerly run by respondent Duty Free Apparel, and Soren acknowledges that Sample Sede Wholesalers is liable for Duty Free Apparel’s judgment, petitioner can enforce its judgment against the assets of Sample Sale Wholesalers. The petition is therefore granted. Petitioner is entitled to the turnover of the assets of Soren, Duty Free Apparel, or Sample Sale Wholesalers, or property or money owed to them, up to an amount sufficient to satisfy the $2,024,584.62 remaining due on the judgment. Concur—Mazzarelli, J.E, Saxe, Marlow, Nardelli and Gonzalez, JJ.

Judgment, Supreme Court, New York County (Faviola A. Soto, J.), entered June 28, 2006, which, to the extent appealable, granted plaintiff declaratory relief, and bringing up for review an order, same court and Justice, entered January 23, 2006, which denied defendant Highland Insurance Company’s motion for a stay, unanimously reversed, on the law, with costs, the judgment vacated, and the motion for a stay granted. Appeal from the January 23, 2006 order unanimously dismissed, without costs, as subsumed in the appeal from the judgment. *274The judgment declared that “the Highlands primary liability insurance policy and the Highlands umbrella liability insurance policy . . . issued to Budco Enterprises, Inc. afford liability insurance coverage to Pegno for the claims against Pegno in the underlying Power action.” Highlands, a Texas-based insurer that writes policies in all 50 states, moved to stay this declaratory judgment action on the ground that in November 2003, the District Court of Travis County, Texas, appointed the Texas Commissioner of Insurance as Receiver of Highlands for purposes of conserving its assets and rehabilitating its business. Any and all claims against Highlands were to be submitted exclusively to that Receiver. The Texas order further restrained and permanently enjoined all litigation against Highlands. In May 2004, Highlands filed this Texas order in Supreme Court, Westchester County, pursuant to the Uniform Enforcement of Foreign Judgments Act (CPLR art 54). “In accordance with the Full Faith and Credit Clause, a ‘judgment of a state court should have the same credit, validity, and effect, in every other court of the United States, which it had in the state where it was pronounced’ ” (O’Connell v Corcoran, 1 NY3d 179, 184 [2003], quoting Underwriters Nat. Assurance Co. v North Carolina Life & Accident & Health Ins. Guaranty Assn., 455 US 691, 704 [1982], quoting Hampton v McConnel, 3 Wheat [16 US] 234, 235 [1818, Marshall, Ch. J.]). Plaintiff improperly commenced this declaratory judgment action, and the court should have granted the motion by Highlands for a stay. Concur—Andrias, J.E, Friedman, Sullivan, Williams and Catterson, JJ.

Order, Supreme Court, New York County (Herman Cahn, J.), entered February 6, 2006, which granted defendants’ motion pursuant to CPLR 3211 (a) to dismiss the complaint, unanimously affirmed, with costs. The action, which seeks, inter alia, to adjudicate plaintiff the owner of shares in defendant corporation as the donee of an inter vivos gift, was properly dismissed at this juncture (see 401 W. 14th St. Fee LLC v Mer Du Nord Noordzee, LLC, 34 AD3d 294 [2006]; Leder v Spiegel, 31 AD3d 266 [2006]) on the ground that plaintiff’s allegations were contradicted by the alleged donor’s August and September 2000 writings unequivocally demonstrating her intent that the transfers of the shares take effect after her death. Thus, the required element of present donative intent was lacking (see Gruen v Gruen, 68 NY2d 48, 53 [1986]). *275In light of the existence of other pending actions involving the issue of ownership of the shares, we note that an order granting a CPLR 3211 (a) (7) motion will have res judicata effect with respect to matters decided on the merits (see Amsterdam Sav. Bank v Marine Midland Bank, 140 AD2d 781 [1988]; Plattsburgh Quarries v Palcon Indus., 129 AD2d 844 [1987]; Furia v Furia, 116 AD2d 694 [1986]; Siegel, NY Prac § 276 [4th ed]). Here, the only determination made on the merits is that no inter vivos gift was made to plaintiff under New York law. Concur—Tom, J.B, Mazzarelli, Williams, McGuire and Kavanagh, JJ. [See 11 Misc 3d 1066(A), 2006 NY Slip Op 50402(U) (2006).]

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered January 3, 2006, which, to the extent appealed from as limited by the briefs, denied so much of defendants’ motion pursuant to CPLR 3211 (a) (1), (5) and (7) as sought dismissal of plaintiff’s third cause of action seeking a declaration that defendants procured plaintiffs execution of a release by misrepresentation, and granted so much of the motion as sought dismissal of that portion of the second cause of action alleging that defendant Maimonides Medical Center improperly terminated plaintiffs hospital privileges, dismissal of the fourth cause of action alleging breach of employment agreements and implied covenants of good faith and fair dealing, and dismissal of the fifth cause of action against defendant Richard V. Grazi alleging tortious interference with existing or prospective contract or business relations, unanimously affirmed, without costs. Accepting the facts alleged in the complaint as true, and according plaintiff the benefit of every possible favorable infer*276ence (Leon v Martinez, 84 NY2d 83, 87-88 [1994]), the court properly denied defendants’ motion to dismiss that portion of the third cause of action seeking a declaration that plaintiff was not subject to a release allegedly procured by misrepresentation. A release may be voided on the basis of fraud in the inducement, even when it results from prolonged negotiations by represented parties (see Blue Chip Emerald v Allied Partners, 299 AD2d 278 [2002]), and plaintiffs allegations were sufficient to sustain this cause of action. The court properly determined that the complaint and evidence submitted by plaintiff established her 1996 employment contract was extended only through June 30, 2001. Although plaintiff subsequently entered into an income sharing agreement with defendant Grazi, as well as mutual releases with him and a shareholder agreement, there was no further extension of her employment contract with the hospital. The hospital’s letter extending plaintiffs hospital privileges did not constitute an extension of her employment contract (see Engelstad v Virginia Mun. Hosp., 718d 262 [8th Cir 1983]). Nor were the September 3, 2002 letter from Dr. Grazi to his attorney and a later one, dated October 24, 2002, to the hospital’s vice-president, upon which plaintiff relies as documentary evidence that her employment contract had been extended to December 2007, sufficient to satisfy the statute of frauds inasmuch as they failed to state all the material terms of a complete agreement, which terms were clearly left to be included in an anticipated restructured contract (see Goebel v Raeburn, 289 AD2d 43 [2001]). Since defendants established that there was no agreement setting forth a fixed duration for plaintiffs continued employment, the court determined that plaintiff was an at-will employee as of July 1, 2001 and properly dismissed her wrongful termination of employment claims (see DeSimone v Supertek, Inc., 308 AD2d 501 [2003]; see also Lui v Chinese-American Planning Council, 300 AD2d 80 [2002]). The court also properly dismissed her claim for breach of the implied covenant of good faith and fair dealing on the same grounds (see Murphy v American Home Prods. Corp., 58 NY2d 293, 304-305 [1983]), as well as her claims for tortious interference with contract and tortious interference with prospective contractual relations, since plaintiff as an at-will employee had no cause of action based on a co-employee’s alleged tortious interference with her employment (see Baker v Guardian Life Ins. Co. of Am., 12 AD3d 285 [2004]; Kosson v Algaze”, 203 AD2d 112 [1994], affd 84 NY2d 1019 [1995]). Nor, in any case, did plaintiffs allegations concern*277ing statements purportedly defaming her set forth grounds for a tortious interference claim, since it is clear that any motivation on defendant Grazi’s part was based on economic self-interest and not for the sole purpose of harming plaintiff (see Carvel Corp. v Noonan, 3 NY3d 182 [2004]). Finally, the court properly found that plaintiff’s claim that defendants terminated her medical staff privileges in violation of Public Health Law article 28 was not properly before it inasmuch as the appropriate recourse for that claim is the grievance procedure set forth in Public Health Law § 2801-b. There is no common-law cause of action based upon a denial of staff privileges by a private hospital; where a cause of action is based upon an allegedly wrongful denial of hospital privileges, the aggrieved physician is limited to injunctive relief under Public Health Law § 2801-c and is barred by section 2801-b from maintaining an action for damages (Moallem v Jamaica Hosp., 264 AD2d 621, 622 [1999]; see also Mason v Central Suffolk Hosp., 305 AD2d 556, 557 [2003], affd 3 NY3d 343 [2004]). To the extent plaintiff relies upon Wasserman v Maimonides Med. Ctr. (268 AD2d 425 [2000]) and Chime v Sicuranza (221 AD2d 401, 402 [1995]) on the ground that she is not seeking reinstatement of her staff privileges but only damages, the Court of Appeals has specifically rejected such rationale. The Court has held that absent a clearly written contract that grants privileges to a doctor for a fixed period of time and agrees not to withdraw those privileges except for specified cause, any claim for damages by the doctor affected is legally insufficient (Mason v Central Suffolk Hosp., supra, 3 NY3d at 348-349). We have considered the parties’ remaining contentions for affirmative relief and find them unavailing. Concur—Andrias, J.E, Sullivan, Gonzalez and McGuire, JJ.

Order, Supreme Court, New York County (Louis B. York, J.), entered October 19, 2006, which granted defendant’s motion for summary judgment dismissing the complaint, but denied so much of that motion as sought summary judgment on its counterclaim for breach of contract, unanimously modified, on the law, summary judgment granted to defendant as to liability *278on its counterclaim, and otherwise affirmed, without costs, and the matter remanded for further proceedings. Defendant’s February 19, 2002 letter was not a contract; its reference to a “possible” sale of air rights and the advice that it “will not consider a sale” of less than a certain square footage did not manifest a present intent to be bound (see Prospect St. Ventures I, LLC v Eclipsys Solutions Corp., 23 AD3d 213 [2005]; Marlio v McLaughlin, 288 AD2d 97, 99-100 [2001], lv denied 98 NY2d 607 [2002]). The parties’ further negotiations showed that there was never a meeting of the minds on all essential terms (see Ross v Wu, 27 AD3d 237 [2006], lv denied 7 NY3d 713 [2006]). Some of these terms were not indefinite because they could be calculated by reference to objective criteria (see Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475, 483 [1989], cert denied 498 US 816 [1990]), but the same cannot be said as to the price or the square footage terms that were continually being negotiated. Plaintiffs claimed need for depositions provided no basis to forestall summary judgment; the central issue rested on a writing whose interpretation presented a pure issue of law for the court, and there was no showing that depositions would have shed further light on it (see Kronish Lieb Weiner & Heilman LLP v Tahari, Ltd., 35 AD3d 317, 318 [2006]). Plaintiffs claimed renovation expenditures do not constitute unconscionable injury warranting the application of promissory estoppel (see River Glen Assoc. v Merrill Lynch Credit Corp., 295 AD2d 274 [2002]); in this regard, his claimed reliance on the February 19 letter was not reasonable (see generally Skillgames, LLC v Brody, 1 AD3d 247, 250 [2003]). In view of the foregoing, it is unnecessary to address the parties’ contentions regarding the statute of frauds. The motion court misperceived the nature of the counterclaim for reimbursement of defendant’s professional costs, which was not a boilerplate request, but rather was based on two specific contractual provisions. Contrary to plaintiffs contention, since there was no enforceable contract with respect to air rights, it cannot be said that defendant was in breach and was improperly seeking to enforce a dependent obligation. Moreover, the obligation was not dependent; while one of the agreements referenced the development rights at issue, neither one conditioned plaintiffs obligation, expressly or by implication, on the existence of such rights. Any dispute regarding the amount of costs incurred in connection with matters other than plaintiffs renovation, such as a proposed joint venture to build two apartments (to which plaintiff did not agree), may be determined in further proceedings. Concur—Friedman, J.E, Nardelli, Sweeny, McGuire and Malone, JJ.

Order, Supreme Court, New York County (Louis Crespo, Special Referee), entered January 4, 2006, which, to the extent appealed from, denied plaintiffs’ application for attorneys’ fees, unanimously reversed, on the law, without costs, plaintiffs’ application granted, and the matter remanded for a determination of the amount to be awarded. Plaintiffs purchased a luxury penthouse apartment from defendant RFD Third Avenue I Associates, LLC, for a purchase price of $3.9 million. During the preclosing walk-through, plaintiffs found various deficiencies in the apartment, and a punch list of items to be completed or repaired was provided. Defendant agreed, in writing, to correct these deficiencies, and placed $75,000 in escrow to secure the completion of the work. The escrow agreement provided that if the work was not completed within 30 days, through no fault of the plaintiffs, defendant would pay plaintiffs $500 per day for each subsequent day the work was not completed, and further provided that in the event any legal action was commenced with regard to the escrow funds, “the prevailing party shall be entitled to recover its legal fees and disbursements.” The work was not completed within the time frame allotted, and plaintiffs’ demanded the escrow monies. Defendant refused, contending that plaintiffs had frustrated the completion of the work, and litigation ensued. Ultimately, the parties stipulated to the release of the escrow of $75,000, plus interest, to plaintiffs, and the matter was referred to a special referee for a determination of legal fees and expenses. We disagree with the Referee’s view that the stipulation releasing the escrow funds to plaintiffs fails to establish that plaintiffs prevailed in this action. To determine whether a party has “prevailed” for the purpose of awarding attorneys’ fees, the court must consider the “true scope” of the dispute litigated and what was achieved within that scope (see Excelsior 57th Corp. v Winters, 227 AD2d 146 [1996]). To be considered a “prevailing party,” one must simply prevail on the central claims advanced, and receive substantial relief in consequence thereof (see Board of Mgrs. of 55 Walker St. Condominium v Walker St., 6 AD3d 279 [2004]). *280Plaintiffs’ essential legal claim against RED Third Avenue I Associates was their entitlement to the escrow funds, premised on their compliance with their obligations under the agreement, and defendant’s failure to “work diligently and use reasonable good faith efforts to complete” the punch list items as required. Although they received the funds they sought through stipulation rather than through a judicial determination, they sufficiently prevailed on their claim (see e.g. Matter of Thomasel v Perales, 78 NY2d 561 [1991]). Accordingly, plaintiffs are entitled to recoup their attorneys’ fees, pursuant to the provision of the escrow agreement allowing for fees to the “prevailing party.” Concur—Mazzarelli, J.E, Saxe, Marlow, McGuire and Kavanagh, JJ.

Orders, Supreme Court, New York County (Herman Cahn, J.), entered January 26 and February 6, 2006, granting defendants’ respective motions for summary judgment dismissing plaintiffs’ claims for damages based on lost profits or the “salvageable” value of QoS, and dismissing the complaints, unanimously affirmed, with costs. “[U]nder common-law rules matters of procedure are governed by the law of the forum” (Martin v Dierck Equip. Co., 43 NY2d 583, 588 [1978]). The question whether plaintiffs had standing to bring this action is a procedural matter (see Mertz v Mertz, 271 NY 466, 473 [1936]). We reject their argument that the motion court erred in applying New York law, as opposed to Irish law, to this issue. “An individual shareholder has no right to bring an action in his own name and in his own behalf for a wrong committed against the corporation” (General Motors Acceptance Corp. v Kalkstein, 101 AD2d 102, 106 [1984], appeal dismissed 63 NY2d 676 [1984]). A claim for diminution of the value of stock holdings is a derivative cause of action belonging to that corporation *282and not to plaintiffs individually (see Elghanian v Harvey, 249 AD2d 206, 207 [1998]). Because the heart of the alleged injury is the diminution in the value of shares of QoS Networks Limited, a start-up company in which plaintiffs were minority shareholders, the argument that plaintiffs are entitled to bring a direct action against Warburg, the majority shareholder, is unavailing under New York law. Nor do plaintiffs establish that Warburg’s conduct falls inside the exception to the general rule for breach of fiduciary duty. A minority shareholder in a close corporation is owed a fiduciary duty by the majority shareholders. In Richbell Info. Servs. v Jupiter Partners (309 AD2d 288, 302 [2003]), we held that the majority could be in breach of its fiduciary duty to minority shareholders, even when exercising an express contractual right, if it acted malevolently and in bad faith, solely for its own gain, and in a manner not contemplated by the parties’ agreement. There, under a “secret agreement,” the defendant exercised a right malevolently for its own gain and to deprive the plaintiffs of the benefit of the joint venture. Here, by contrast, Warburg exercised its contractual right in exactly the manner contemplated by the parties. Warburg acted to protect its priority status in QoS’s capital structure for which it had bargained and for which it had invested $30 million in the company. This fact, without more, places this case outside the exception created by Richbell. We further reject plaintiffs’ argument that Warburg breached its implied duty of good faith and fair dealing. Implicit in every contract is a promise of good faith and fair dealing, which is breached when a party “acts in a manner that, although not expressly forbidden by any contractual provision, would deprive the other party of the right to receive the benefits under their agreement” (Jaffe v Paramount Communications, 222 AD2d 17, 22-23 [1996]). The crux of this claim is the default of certain loan agreements, which were the subject of three prior actions against Warburg for breach of these agreements. In each of these actions, we affirmed the motion court’s grant of summary judgment in favor of Warburg, finding that plaintiffs received the benefit of their bargain under the loans (see e.g. Warburg, Pincus Equity Partners, L.P. v Keane, 22 AD3d 321 [2005], lv denied 6 NY3d 707 [2006]). Plaintiffs have failed to establish that Warburg breached its implied duty of good faith and fair dealing when plaintiffs defaulted on these loans. In addition, to recover lost profits it must be demonstrated with certainty that such damages have been caused by the *283breach, and the alleged loss must be capable of proof with reasonable certainty (see Kasem v Philip Morris, USA, 244 AD2d 532 [1997]). The lost profits may not be merely speculative, possible or imaginary (see Kenford Co. v County of Erie, 67 NY2d 257, 261 [1986]). A start-up commercial enterprise faces a stricter standard when seeking damages for lost profits “for the obvious reason that there does not exist a reasonable basis of experience upon which to estimate lost profits with the requisite degree of reasonable certainty” (id.). We reject plaintiffs’ claim for lost profits damages on the ground that the evidence submitted was speculative. To the extent plaintiffs seek to recover damages for their initial investment in QoS, that claim is unpreserved, and is, in any event, without merit. We have considered plaintiffs’ remaining arguments and find them unavailing. Concur—Saxe, J.P., Williams, Buckley, Catterson and Malone, JJ.

Petitioner moved to punish respondent for contempt by reason of his failure to comply with the subpoenas of this court. On June 13, 1960, the court referred to an Official Referee of the Supreme Court the issue as to whether respondent had deliberately and willfully disobeyed the subpoenas; and, pending the Referee’s report, the court has held the application in abeyance. The Referee, after holding hearings at which respondent defaulted, has now filed his report in which he finds that respondent did deliberately and willfully disobey the subpoenas and in which he recommends that respondent be punished for criminal contempt as prescribed by law (Judiciary Law, § 750, subd. 3; § 751). Petitioner moves to confirm the report. Motion to confirm the Referee’s report granted; application to punish respondent for criminal contempt for disobeying said subpoenas granted. By reason of respondent’s willful disobedience to the subpoenas of this court, he is ordered to he imprisoned for 30 days in the county or city jail in Kings County. He is given leave, however, at any time during said 30-day period, to purge himself by complying fully with such subpoenas. Upon proof of such compliance he will be relieved of further imprisonment. Nolan, P. J., Beldock, Ughetta, Christ and Brennan, JJ., concur.

Judgment, Supreme Court, New York County (Renee A. White, J.), rendered May 13, 2003, convicting defendant, after a jury trial, of assault in the second degree and unlawful imprisonment in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of six years, unanimously affirmed. Defendant’s general motion for a trial order of dismissal failed to preserve the legal sufficiency claims he asserts on appeal, and we decline to review them in the interest of justice. Were we to review these claims, we would reject them. The evidence satisfied the elements of second-degree assault under a theory of intent to prevent a police officer from performing a lawful duty (Penal Law § 120.05 [3]). The officer was performing the lawful duty of investigating a possible crime in progress, or at least a public disturbance, and of restraining defendant, who was behaving in a threatening and belligerent manner (see Matter of Ismaila M., 34 AD3d 373 [2006]). The evidence also supported the inference that defendant knew his victim was a police officer, and acted with the requisite intent. Defendant’s arguments concerning his unlawful imprisonment conviction, and his challenges to the court’s charge, including his pro se claims, are likewise unpreserved and unavailing. Concur—Saxe, J.P, Williams, Buckley, Catterson and Malone, JJ.

Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered on or about August 2, 2006, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. The action involves two allegedly libelous articles that were published in a teachers’ union newsletter and written by defendant, a teacher and union representative at the same high school where plaintiff was an assistant principal. The articles criticized plaintiffs handling of certain disciplinary and school safety issues, and accused him of violating Chancellor’s Regulation C-175, which governs “per session” pay and prohibits payment for work that is part of a pedagogue’s regular work day, by taking compensation for work he performed on Saturdays at the school. Defendant wrote, among other things, that plaintiff “has been pocketing illegal per session money in violation of Chancellor’s Regulation C-175,” and that after being told by the principal to stop working on Saturdays, plaintiff “continued to punch in and collect money . . . [b]ecause an important person in the Superintendent’s Office has conspired with [plaintiff] to take money that is designated for the instruction of our children and funnel it into [plaintiffs] bank account.” Defendant’s statements in her capacity as union representative, criticizing plaintiffs professional competence and honesty, fall within the broad definition of a “labor dispute” under federal law, and therefore are not subject to state law defamation claims in the absence of a showing of actual malice, i.e., that defendant published the statements while highly aware that they were probably false (see Hoesten v Best, 34 AD3d 143, 152-153, 155 [2006]). On this record, no triable issues of fact exist as to defendant’s actual malice. Defendant makes a prima facie showing that she herself was a participant in the incident involving plaintiffs alleged rule-breaking denial of union representation at a postobservation conference with a teacher. Although defendant did not have *285firsthand knowledge of the incidents in which plaintiff returned ejected students to their classrooms, she shows that she spoke to the teachers involved and there were no reasons to doubt the credibility of their complaints, or the numerous other complaints she received about plaintiffs conduct toward teachers and his disregard of school rules. Similarly, defendant was informed that plaintiff was working on Saturdays by other teachers who wondered why he was at the school. Defendant testified that she asked the principal about it, and was told that plaintiff was working on Saturdays but at no additional pay, but that when she asked plaintiff himself about his Saturday work, he freely admitted that he was receiving extra pay. Defendant further shows that she soon learned of other information corroborating this “illegal” Saturday work. Indeed, far from showing knowledge of probable falsity, the record tends to support defendant’s assertion of a Regulation C-175 violation. Plaintiff asserts that the assistant superintendent and the principal sanctioned his Saturday work, but, if so, there is no evidence that defendant was aware that plaintiff was given a waiver, and defendant asserts, without contradiction, that waivers were usually given to teachers who wanted to work while on sabbatical or leave of absence, not to assistant principals who cannot complete their regular job duties during regular hours. It should also be observed that the offending statements were qualifiedly privileged under state law because of the common interest shared by the union and the employer in preventing mistreatment of teachers in the workplace and ensuring compliance with the Chancellor’s rules (see Hoesten, 34 AD3d at 157). To overcome the privilege, plaintiff would have to establish either constitutional or common-law malice (see id. at 157-158). However, for the reasons already discussed, no issues of fact exist as to constitutional malice, and, with respect to common-law malice, similar reasons show that no issues of fact exist as to whether defendant spoke out of spite or ill will. Even if defendant held some grudge against plaintiff, it remains undisputed that the complaints about plaintiff came from the teachers themselves. Nothing in the record suggests that plaintiff concocted the complaints herself, goaded the teachers in any manner or that any such grudge was the sole reason for the articles (see id. at 158-159). Concur—Saxe, J.P., Williams, Buckley, Catterson and Malone, JJ.

Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered November 15, 2005, convicting defendant, after a jury trial, of two counts of robbery in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 18 years to life, unanimously affirmed. The court properly denied defendant’s application made pursuant to Batson v Kentucky (476 US 79 [1986]). Defendant did not produce “evidence sufficient to permit the trial judge to draw an inference that discrimination ha[d] occurred” (Johnson v California, 545 US 162, 170 [2005]), and thus failed to make a prima facie showing of racial discrimination in the People’s exercise of their peremptory challenges. Defendant’s argument is based entirely on an alleged disparity between the People’s pattern of peremptory challenges and the pattern that would be “expected,” given the racial composition of the available panel of prospective jurors. However, this argument is unreviewable because defendant failed to make any record of the racial makeup of the panel, which was his responsibility to make (see People v Kinchen, 60 NY2d 772 [1983]). Instead, defendant seeks to fill in this gap with speculative assumptions about his own exercise of peremptory challenges, which we find unpersuasive. In any event, even if we were to accept defendant’s assertions regarding his own challenges and calculate the racial composition of the panel accordingly, and even if we were to employ defendant’s mode of analysis, we would still find that he has not shown a statistically significant disparity so as to raise an inference of discrimination (see Castaneda v Partida, 430 US 482, *289496 n 17 [1977]). To the extent that defendant is challenging the standard used by the trial court in determining that there was no prima facie case of discrimination, such claim is unpreserved and we decline to review it in the interest of justice. Concur—Tom, J.P., Marlow, Nardelli, Gonzalez and Kavanagh, JJ.

Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered on or about November 28, 2006, which granted plaintiffs motion for partial summary judgment on the issue of comparative liability, unanimously affirmed, without costs. The law is well settled that a rear-end collision with a stopped vehicle creates a presumption that the operator of the rear vehicle was negligent. Thus, the injured occupant of the front vehicle is entitled to summary judgment on liability unless the driver of the second vehicle provides a nonnegligent explanation for the collision (see Johnson v Phillips, 261 AD2d 269, 271 [1999]). Here, the record is bereft of evidence rebutting the presumption that defendant was negligent. To the contrary, the evidence demonstrated that defendant hit plaintiff from behind while plaintiff was stopped, or very nearly stopped, on the roadway during stop-and-go traffic. Indeed, defendant conceded that he did not continuously observe plaintiff, who was driving immediately in front of him. Furthermore, there was no evidence in the record that plaintiff had acted in such a way as to cause the accident, such as by stopping suddenly or by veering in front of defendant. Since defendant failed to offer a non-negligent explanation for the accident, or point to any evidence that plaintiff bore any comparative fault, the court properly granted plaintiffs motion for partial summary judgment on this issue (see Agramonte v City of New York, 288 AD2d 75 [2001]). Concur—Tom, J.P., Marlow, Nardelli, Gonzalez and Kavanagh, JJ.

Order and judgment (one paper), Supreme Court, New York County (Leland DeGrasse, J.), entered June 6, 2006, which, inter alia, granted defendants’ cross motion pursuant to CPLR *2913211, and dismissed the complaint, unanimously affirmed, without costs. The complaint, which is devoid of allegations of systemic, district-wide educational deficiencies attributable to a lack of funding by the State, fails to state a cognizable claim under the Education Article (art XI, § 1) of the New York State Constitution (see New York Civ. Liberties Union v State of New York, 4 NY3d 175, 180-182 [2005]; Paynter v State of New York, 100 NY2d 434, 440-441 [2003]; Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 317-319 [1995] (CFE II]). In any event, plaintiffs claims are barred by res judicata based upon the recently concluded litigation in Campaign for Fiscal Equity, Inc. v State of New York (8 NY3d 14 [2006]). It is clear that the CFE plaintiffs represented the interests of all New York City school children and that the relief obtained—a declaratory judgment that the State was inadequately funding the New York City public school system and an order directing the State to implement financing reforms to fund the City public school system adequately (see Campaign for Fiscal Equity v State of New York, 100 NY2d 893 [2003] and 8 NY3d 14 [2006], supra)— was for the benefit of all City school children, including plaintiffs (see Buechel v Bain, 97 NY2d 295, 304 [2001], cert denied 535 US 1096 [2002]; Green v Santa Fe Indus., 70 NY2d 244, 253 [1987]; Weisz v Levitt, 59 AD2d 1002 [1977]; Stissing Natl. Bank v Kaplan, 28 AD2d 1159 [1967]). Plaintiffs’ remaining arguments are unavailing. Concur— Tom, J.P., Marlow, Nardelli, Gonzalez and Kavanagh, JJ.

Judgment, Supreme Court, New York County (Renee A. White, J., at hearing; Micki A. Scherer, J., at plea and sentence), rendered November 9, 2005, convicting defendant of robbery in the first degree, and sentencing him, as a second violent felony offender, to a term of 12 years, unanimously affirmed. The court properly denied defendant’s motion to suppress his statements. 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 hearing evidence establishes that defendant’s confessions were voluntary (see Arizona v Fulminante, 499 US 279, 285-288 [1991]; People v Anderson, 42 NY2d 35, 38-39 [1977]). The police did not promise defendant immunity or lenient treatment if he cooperated, or use any other tactics that would impair the voluntariness of the statements. By pleading guilty, defendant waived his present claim that the court improperly denied his request for a free copy of the minutes of the suppression hearing (see People v Hansen, 95 NY2d 227, 230 [2000]). In any event, there is no merit to the claim, particularly since the hearing court never denied the application, but instead referred it to the trial court, whereupon it was obviated by defendant’s, guilty plea. Concur—Tom, J.P., Marlow, Nardelli, Gonzalez and Kavanagh, JJ.

Orders, Supreme Court, New York County (Herman J. Cahn, J.), both entered November 25, 2005, which, inter alia, confirmed the report of the special referee finding that the subpoenas at issue had been properly served on appellant and that appellant had deliberately and contumaciously failed to comply with them, and thereupon adjudged appellant in contempt and entitled plaintiff to recover attorneys’ fees and costs, unanimously modified, on the law, to vacate the adjudication of contempt and the relief premised thereon, and otherwise affirmed, without costs. *292The referee’s finding that appellant Hedvat had been properly served with the subpoenas at issue, is supported by the record and was properly confirmed (Nager v Panadis, 238 AD2d 135 [1997]). However, the issue of whether Hedvat’s noncompliance with the subpoenas constituted contempt was not referred to the referee (see CPLR 4212, 4311) and was not properly passed on by him and, accordingly, the referee’s finding on that issue was not a proper basis for the court’s adjudication of contempt against Hedvat. The elements of civil contempt (see Matter of Fishel v New York State Div. of Hous. & Community Renewal, 172 AD2d 835 [1991]) in this matter involving nonjudicial subpoenas, were, in any event, not made out before the referee, and, even if they had been, the adjudication against Hedvat would still have been infirm since Hedvat was not afforded proper notice of and a hearing on the issue. It follows that there is no basis for an award of attorneys’ fees and costs pursuant to Judiciary Law § 773. Concur—Tom, J.P., Marlow, Nardelli, Gonzalez and Kavanagh, JJ.

In an action to enforce an indemnity agreement, defendants appeal from an order of the Supreme Court, Kings County, dated August 23, 1960, denying their motion to dismiss the complaint pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice. Order affirmed, with $10 costs and disbursements. The indemnity agreement between the parties covers a bond for the performance of a contract made by defendant Sanitary Sleep Products Corp. with the United States of America, for the sale and delivery of certain goods. Clause “ Second ” of the indemnity agreement, in pertinent part, provides that: “the Indemnitor [defendants] will perform all the conditions of * * * said bond * * * and save the Company [plaintiff] harmless from and against every claim, demand, liability, loss * * * sustained or incurred by the Company by reason of having executed or procured the execution of said bond[s] or obligations, and will place the Company in funds to meet same before it shall be required to make payment” (emphasis supplied). The complaint alleges that the United States of America terminated the contract by reason of the default of defendant Sanitary Sleep Products Corp. in its performance and gave notice to said defendant and to the plaintiff “that said defendant would be held liable for excess costs to the Government” resulting from its repurchase of the goods at a higher price. Under the allegations of the complaint, which must be viewed in an aspect most favorable to the pleader (Dyer v. Broadway Cent. Bank, 252 N. Y. 430, 432), plaintiff “has become liable to the United States of America upon its *810said bond ”. The purpose of the quoted clause “ Second ” is not merely to save harmless against “ every claim, demand, liability, loss ” after it has arisen, but to indemnify the surety against future or anticipated liability. The language of the instrument is consistent with such intent. (Cf. Belloni v. Freeborn, 63 N. Y. 383, 388; McArthur Bros. Co. v. Kerr, 213 N. Y. 360, 365.) Nolan, P. J., Beldock, Ughetta, Kleinfeld and Christ, JJ., concur.

Order, Supreme Court, New York County (Laura VisitaciónLewis, J.), entered February 14, 2006, which, to the extent appealed from as limited by the briefs, denied defendant husband’s motion for an order holding plaintiff wife in civil contempt for her failure to return his personal property in accordance with a prior order of this Court, unanimously affirmed, with costs. In May 2005 this Court directed a mutual return of personal property between the parties (18 AD3d 344 [2005]). The argument that defendant has been prejudiced by plaintiffs failure to return his personalty is unpersuasive. In a partial inventory provided to plaintiff in April 2003, defendant listed an Oriental rug, desk lamps, various items of jewelry, a facsimile machine, neckties and unspecified compact discs. In response, plaintiff offered to have their attorneys “deal with the logistics of the exchange.” Apparently there was no follow-up in that regard. Responding to the contempt motion, plaintiff stated, in October 2005, she remained willing to facilitate such retrieval as soon as defendant could work out the logistics of the transfer. The property in question was either left behind by defendant in the parties’ vacant marital apartment, or was in storage at the time of their separation. At this late date, any delay in returning the property appears to be due more to lack of communication than to plaintiffs conduct. On this record, plaintiffs *293challenged conduct, standing alone, could not be found to have defeated, impaired, impeded or prejudiced defendant’s rights to his personal property, so as to justify an order of contempt (see Judiciary Law § 753 [A]). Concur—Tom, J.P., Marlow, Nardelli, Gonzalez and Kavanagh, JJ.

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered March 14, 2006, which granted a temporary stay of arbitration pending a referee’s hearing and report on the insurance status of the alleged offending vehicle in the accident, and denied petitioner additional discovery, unanimously affirmed, with costs. The automobile driven by respondent, a Connecticut resident whose insurance policy was issued by petitioner in that state, was involved in an accident in the Bronx with an apparently uninsured vehicle registered to, owned and operated by a New Jersey resident. Since the accident occurred in New York State and petitioner does business here, respondent notified petitioner of his intention to pursue arbitration in connection with his uninsured motorist benefits (see Insurance Law § 5106 [b]). Petitioner thereupon commenced this proceeding to stay arbitration on the ground that respondent is not entitled to such arbitration under the relevant policy and Connecticut law. Petitioner’s appeal from the temporary stay is based in part on the argument that Connecticut law governs Louie’s demand for arbitration. However, we have long held that where the obligation to arbitrate is not found in the policy but is instead imposed on that agreement by the New York State Insurance Law, it “is imposed not only upon New York policies but also upon policies written for nonresidents when their automobiles are operated in this State and the insurer is authorized to transact business here” (Ohio Cas. Group v Avellini, 54 AD2d 632 [1976], affd on our mem 43 NY2d 701 [1977]). To the extent the Second Department has more recently held otherwise (Matter of State Farm Mut. Auto. Ins. Co. v Torcivia, 277 AD2d 321 [2000]), we decline to follow that ruling. The court did not improvidently exercise its discretion in denying the request for disclosure in aid of arbitration (CPLR *2943102 [c]), in view of petitioner’s failure to set forth the kind of information it expected to find through that discovery. Concur— Tom, J.P., Marlow, Nardelli, Gonzalez and Kavanagh, JJ.

Order, Supreme Court, New York County (Michael D. Stall-man, J.), entered March 1, 2006, which denied the motions of defendants-appellants Lincoln Center for the Performing Arts, Inc. (Lincoln Center), The Vivian Beaumont Theater, Inc. (VBT), and Hardy Holzman Pfeiffer Associates (HHPA) for summary judgment, unanimously reversed, on the law, without costs, the motions granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly. Plaintiff Giovanni Ragusa was delivering a number of six-gallon bottles of Poland Spring Water to the 65th Street garage entrance to the VBT. He had taken between seven and nine bottles off his truck, stacked them on a rolling platform dolly, and was bringing them up the ramp, when the dolly tipped. He was struck and injured by the bottles. Plaintiffs brought this action against Lincoln Center (the owner of the building), VBT and the City of New York. They then brought an action against HHPA, the architect who designed the sidewalk/walkway. Later, the actions were consolidated. It was plaintiffs’ theory that defendants were negligent because the walkway/sidewalk was dangerous. Plaintiffs contended that the slope of the walkway was steeper than permitted under the New York City Building Code, and that it was defectively designed and/or negligently constructed. Defendants brought individual motions for summary judgment. In support, VBT and HHPA relied upon an affidavit by an engineer who concluded that the slope of the sidewalk was in compliance with the New York City Building Code and thus was not excessive. Continental Marble, Inc. a third-party defendant against whom all claims were dismissed, submitted the affidavit *295of an engineer who stated that the pitch of the sidewalk was in fact less steep than that prescribed by the Building Code. Defendant Lincoln Center asserted that it was not liable for any alleged defect because it did not design or oversee the installation of the walkway. In opposition, plaintiffs submitted the affidavit of an engineer who concluded that the slope violated Department of Transportation regulations. In reply, HHPA submitted an affidavit which showed that plaintiffs’ engineer’s affidavit was based upon a mathematical miscalculation. It showed that once this error was corrected, the cross slope percentage calculation of the walkway was within good and accepted engineering practice. The motion court denied the appealing defendants’ motions, finding an issue of fact as to whether the construction of the walkway proximately caused plaintiffs injuries. We reverse. Defendants submitted evidence showing that they obtained all of the requisite permits for the installation of the sidewalk, that the slope of the sidewalk was constructed in compliance with the New York City Building Code, and that the necessary certificate of occupancy was obtained upon completion of construction. This met their burden on summary judgment (see Sorenson v Taylor’s Supermarket, 304 AD2d 415 [2003]). In opposition, plaintiff failed to refute defendants’ claims of proper design and construction of the walkway. In fact, after the proper calculations were done, plaintiffs’ engineer’s affidavit supported defendants’ position. As there was no evidence that the sidewalk was otherwise defective, any finding that defendants were responsible for plaintiffs accident would rest upon sheer speculation (Reed v Piran Realty Corp., 30 AD3d 319 [2006], lv denied 8 NY3d 801 [2007]). Concur—Tom, J.P., Mazzarelli, Andrias, Marlow and Gonzalez, JJ.

Order, Supreme Court, New York County (Phyllis GangelJacob, J.), entered July 11, 2006, which, after a hearing pursuant to Mental Hygiene Law § 9.31, directed respondent’s release from Manhattan Psychiatric Center (MPC), unanimously affirmed, without costs or disbursements. Two of the three psychiatrists agreed that respondent was *296mentally ill, but differed as to his diagnosis.* One of them conceded some question as to whether respondent had exhibited a conduct disorder prior to age 15 (a criterion necessary under the DSM-IV—the latest edition of the American Psychiatric Association’s Diagnostic and Statistic Manual of Mental Disorders—for diagnosing antisocial personality disorder), and instead based his diagnosis on respondent’s “spectrum” of behavior (a term not included in the DSM-IV). The other two psychiatrists did not refer to this “spectrum.” Thus, regardless of the precise diagnosis, petitioner did not submit clear and convincing evidence that respondent suffered from a mental illness. Petitioner further failed to demonstrate by clear and convincing evidence that inpatient treatment was essential to respondent’s welfare, and that his judgment was so impaired that he was unable to understand the need for such care and treatment (see Mental Hygiene Law § 9.01). Nor did petitioner demonstrate that respondent posed a substantial risk of physical harm to himself or others (see Matter of Gilliard v Sanchez, 219 AD2d 500 [1995]). Respondent had numerous arrests and convictions for prostitution-related crimes more than a decade ago, but he committed no misconduct while in prison, and his behavior during incarceration over the past 10 years demonstrates no signs of violence or threat toward others. Concur—Mazzarelli, J.P., Friedman, Sullivan, Williams and Gonzalez, JJ. Respondent’s brief states that he originally petitioned for a writ of habeas corpus challenging the legality of his initial transfer to MFC and that the petition was dismissed as moot in light of Justice Gangel-Jacob’s order directing his release. He notes that “the circumstances that originally brought [him] to MFC are not at issue in this appeal,” and that the “present application relates solely to MFC’s application pursuant [to] Section 9.33 of the Mental Hygiene Law to involuntarily retain [him] as a patient” (compare State of N.Y. ex rel. Harkavy v Consilvio, 7 NY3d 607 [2006]).

In a proceeding to adjudge in contempt the members of the Assessment Board of Nassau County, by reason of their failure to comply with a prior order of the Supreme Court, Nassau County, dated July 22, 1959, made in a proceeding-under article 78 of the Civil Practice Act, directing them, by October 1, 1959, pursuant to section 603 of the County Government Law of Nassau County, to adopt such rules for the guidance of the county’s deputy assessors in the performance of their duties “ as will establish an equitable and scientific system of assessing property for taxation,” to publish such rules and to make them available to the county taxpayers, said board members appeal from an order of said court, dated March 17, 1960, granting the petition, adjudging them in contempt for violating said prior order, and giving them 45 days to purge themselves by adopting revised regulations, publishing them and making them available. Order reversed, on the law and the facts, with costs, and application to adjudge said board members in contempt denied, without costs. Findings of fact inconsistent herewith are reversed and new findings are made as indicated herein. As punishment for contempt may involve not only loss of property but loss of liberty as well, it is a reasonable requirement that the mandate *811alleged to be violated should be clearly expressed, and, when applied to the act complained of, it should appear with reasonable certainty that it had been violated (Ketchum v. Edwards, 153 N. Y. 534, 539). Here, the mandate or order of July 22, 1959, alleged to have been violated, except insofar as it directed the board members to adopt rules and regulations, to publish them and to make them available to taxpayers, is too vague and indefinite to furnish the basis for a contempt proceeding (cf. Adams v. Adams, 179 App. Div. 152). If it be assumed, however, that the direction to adopt such rules and regulations “ as will establish an equitable and scientific system of assessing property for taxation” may be enforced in such a proceeding, it does not appear from the record submitted that the board members have not adopted such rules and have not published and made them available, as required by the provisions of the said order. Nolan, P. J., Christ and Pette, JJ., concur; Beldock and Kleinfeld, JJ., dissent and vote to affirm on the opinion of the Justice at Special Term (Matter of Carlson v. Podeyn, 24 Misc 2d 317).

Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered January 3, 2006, which denied plaintiff’s motion to vacate an order granting defendant New York City Transit Authority’s motion for summary judgment dismissing the complaint, reversed, on the law, without costs, plaintiff’s motion granted, the complaint reinstated and the matter *297remanded for determination of defendant New York City Transit Authority’s motion for summary judgment on the merits. Plaintiff alleges that she was injured while a passenger on a New York City Transit Authority (NYCTA) bus. After completion of disclosure and plaintiffs filing of a note of issue, NYCTA sought, and obtained, leave to file a late motion for summary judgment. Plaintiff submitted opposition papers but did not appear at oral argument. Without addressing the merits of the motion, the court, in an order entered October 4, 2004, granted the motion for summary judgment on default due to plaintiffs failure to appear for oral argument on the return date of the motion. On October 10, 2005, plaintiff moved to vacate this order, her attorney affirming that he was told by a court clerk that appearances on the return date of the motion were not required. NYCTA opposed the motion to vacate, arguing that it should be denied because it was made only two days before the one-year period for making such a motion expired and because plaintiff failed to offer a reasonable excuse for her default. Supreme Court found plaintiff did not show a reasonable cause for the delay in making the motion to vacate and denied the motion as “not being timely made.” This was error. Plaintiff had one year from service of notice of entry of the order granting summary judgment on default to make the motion to vacate (CPLR 5015 [a] [1]). Given that plaintiff was served with notice of entry of the order on October 12, 2004 and the motion to vacate was filed on October 10, 2005, the motion was timely. Plaintiffs attorney presented a reasonable excuse for not appearing on the return date of the motion in affirming that he was informed by a court clerk that his appearance was not required. Such a scenario does not, by itself, amount to a pattern of neglect or willfulness warranting a default (see Rugieri v Bannister, 22 AD3d 299, 302 [2005], affd in relevant part 7 NY3d 742 [2006]; cf. Tri-State Envtl. Contr., Inc. v M.H. Kane Constr., Inc., 25 AD3d 436 [2006]). Accordingly, this Court finds that plaintiff has presented a proper basis upon which the motion to vacate the order granting summary judgment on default should be granted; the matter is remanded to Supreme Court for a determination of the summary judgment motion on the merits. Concur—Tom, J.P., Mazzarelli and Kavanagh, JJ. Williams and McGuire, JJ., concur in part and dissent in part in a separate memorandum by McGuire, J., as follows: I agree with the majority that Supreme Court erred in denying plaintiffs motion to vacate the prior order of that court which, *298upon plaintiffs failure to appear for oral argument, granted the motion of defendant New York City Transit Authority (NYCTA) for summary judgment dismissing the complaint. I disagree, however, with the majority’s decision to remand the matter “to Supreme Court for a determination of the summary judgment motion on the merits.” Recognizing that its motion for summary judgment was untimely (see CPLR 3212 [a]), NYCTA requested leave to make a belated motion, asserting that no triable issues of fact existed regarding its liability and that consideration of the merits of the motion would conserve judicial resources. These excuses did not constitute “good cause”—a satisfactory explanation for the untimeliness (see Brill v City of New York, 2 NY3d 648 [2004]; Perini Corp. v City of New York (Department of Envtl. Protection), 16 AD3d 37 [2005]). Accordingly, as a matter of law, the motion for summary judgment must be denied. Indeed, this case is indistinguishable from Miceli v State Farm Mut. Auto. Ins. Co. (3 NY3d 725 [2004]). There, as here, the party making the untimely motion “argu[ed] only that her motion [was] meritorious” (id. at 727). The remand to Supreme Court for a determination on the merits is either pointless or an invitation to err.

In a proceeding to settle the account of the administrator of the estate of Katherine E. Schaaf, deceased, who died in 1955, a decree of the Surrogate’s Court, Kings County, dated March 31, 1959, was made declaring that William H. Sehaaf, a first cousin of the deceased, survived her and was a distributee of her estate; that his whereabouts are unknown; that his distributive share of the estate be deposited with the City Treasurer of the City of New York for William’s benefit and to the credit of the proceeding; and that such deposit shall be subject to the further order of the Surrogate’s Court. The money representing the share of the distributee William was accordingly deposited with the City Treasurer. Subsequently, and on the basis of its decision holding that May 17, 1958, is the presumptive date of William’s death, the said Surrogate’s Court made an order on June 13, 1960, granting the motion of the ancillary administratrix of William’s estate to direct the City Treasurer to pay to her the money thus deposited with him; directing that such payment be made; and denying the cross motion, made by Frieda Horst, Clara Gardner and George Sehaaf, three first cousins and distributees of the deceased Katherine, and by Myrtle Hildebrandt, administratrix of the estate of Magdalena Hildebrandt, a fourth first cousin and distributee of the deceased Katherine, to direct the City Treasurer to pay to them four-sevenths of the deposited money. The three distributees last named and the administratrix of the fourth, appeal from said order. Appellants contend: (1) that the presumptive date of death of William, namely, May 17, 1958, having been found in a proceeding to obtain letters of administration on William’s estate, is not binding in the accounting proceeding in Katherine’s estate (Matter of Rowe, 197 App. Div. 449, affd. 232 N. Y. 554); (2) that the evidence, which establishes that William disappeared in 1927 or 1929, requires findings that William died seven years thereafter, that accordingly he did not survive Katherine and was not a distributee of her estate, that the money deposited with the City Treasurer is part of Katherine’s estate, and that such money may not properly be directed to be paid to William’s administratrix (Matter of Rowe, supra; Butler v. Mutual Life Ins. Co., 225 N. Y. 197, 203); and (3) that the decree in the accounting proceeding in Katherine’s estate should be interpreted as leaving open the question of whether or not William predeceased Katherine, or if it be not thus interpreted, that the matter be remitted to the Surrogate’s Court to conform the decree to the Surrogate’s written decision (Surrogate’s Ct. Act, § 20, subd. 6). The decree on the accounting was entered in a proceeding in which appellants were parties and in which *812evidence was given that William had disappeared in 1927 or 1929. No appeal was taken from that decree, and the time within which to appeal has expired. Order affirmed, with $10 costs and disbursements to all respondents filing briefs, payable out of the estate. Since no motion was made in the Surrogate’s Court to change or modify the provisions of the decree on the accounting, it must be held that appellants are bound by those provisions. This disposition, however, is without prejudice to a motion to modify the decree, if appellants be so advised. Nolan, P. J., Beldock, Ughetta, Kleinfeld and Christ, JJ., concur.

In a proceeding under article 78 of the Civil Practice Act, to compel petitioner’s reinstatement to the position of court attendant in the District Court of Nassau County, to direct the payment of his salary in such position from January 1, 1960 to the date of reinstatement and for other incidental relief, the Board of Judges of said court, the Civil Service Commission of said county and the county officers named appeal from an order of the Supreme Court, Nassau County, dated June 23, 1960, granting the petition; declaring, inter alia, that petitioner’s probationary employment in the competitive class of civil service as a court attendant in the said court was not effectively terminated at the end of the probationary period; adjudging that at the end of such period petitioner’s employment became permanent; declaring that petitioner is entitled to hack salary from January 1, 1960, and directing its payment; and containing other incidental provisions. Order affirmed, without costs. Rule XVIII of the Rules of the Nassau County Civil Service Commission, which has the force and effect of law (Civil Service Law, § 20, subd. 2) prescribes that “ if the conduct, capacity and fitness of the probationer are not satisfactory, the appointing officer shall notify the probationer that his services will terminate at the end of his probationary period ” and that “ such notice shall be in writing.” The appointing officer is the County Executive (County Government Law of Nassau County, § 2415). If an attempted termination of a probationer’s service be not in accordance with the prescribed procedure therefor, the appointment ripens into a permanent one (People ex rel. Goldschmidt v. Board of Educ. of City of N. Y., 217 N. Y. 470; Matter of Weishar v. Thayer, 245 App. Div. 893; Matter of Graae v. Ahern, 258 App. Div. 686). Here, the written notice purporting to terminate petitioner’s services as a probationer was on the stationery of, and signed by, the President of the Board of Judges of the District Court. Nothing on the face of the notice indicated in any way that it was given as a notice by the County Executive or on his behalf. The first sentence of subdivision 2 of said rule XVIII contemplates that officials other than the County Executive may have a proper role in the matter of whether or not a probationer shall be retained at the end of his probationary period. It states: “ Every officer under whom any probationer shall serve during any part of his probation shall carefully observe the conduct, capacity and fitness of the probationer.” In our opinion, the fact that the promulgators of the rule assigned to such officer (other than the appointing officer) only the function of observing a probationer’s conduct, capacity and fitness (which undoubtedly also contemplates the making of appropriate reports and recommendations), indicates an intent to limit the authority of such other officer to that function and to exclude all authority with respect to the termination of services and to the notice thereof. Accordingly, we conclude that the intent of the rule was to require that such notice be given only by the County Executive; that such function was not to be delegated to anyone; and that the fact that the County Executive had authorized the President of the Board of Judges to send the notice is of no avail to appellants. Ughetta, Kleinfeld, Christ and *813Pette, JJ., concur; Beldoek, Acting P. J„, dissents and votes to reverse the order and to deny the petition.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered on or about May 16, 2006, which denied defendants-appellants’ motion for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint as against them. Plaintiff claims that he was injured when a tenant living at a single room occupancy hotel owned and operated by appellants dropped an air conditioner onto the street as she was trying to remove it from the window. The tenant testified that no one at the hotel ever had anything to do with the air conditioner, she wanted to take the air conditioner out because it was winter and cold, and she requested the hotel staffs assistance but was told no one on staff was available at the time. She then at*299tempted to remove the air conditioner herself without informing the staff, but it slipped out of her hands and fell out the window. Appellants’ principal testified that tenants were not allowed to have air conditioners in their rooms, and that he was not aware that the tenant had one until he heard of the accident. Plaintiff does not allege, and there is no evidence, that the air conditioner was improperly installed or otherwise itself constituted a danger. Appellants moved for summary judgment, arguing that they never maintained the air conditioner and had no duty to control the tenant’s behavior. The motion was denied on the ground that issues of fact exist as to whether the tenant’s request for assistance made the accident foreseeable and whether appellants were negligent in failing to provide the requested assistance or “take other steps to protect passersby.” This was error. Even assuming that appellants were under a duty to help the tenant remove the air conditioner, that such duty gave rise to a corresponding duty of care to members of the public at large, and that the tenant’s attempt to remove the air conditioner without assistance rendered the accident foreseeable, there is no evidence that the hotel had reason to believe that the tenant would attempt to remove the air conditioner without assistance. Concur—Tom, J.P., Sullivan, Williams, Buckley and Kavanagh, JJ.

For the purpose of reconstructing and converting his garage into a dwelling, plaintiff, the owner, entered into a contract with defendant Lindstrom as the general contractor. The other defendants named are subcontractors: defendant Makeever being the heating subcontractor who installed the oil burner; defendant Leiding being the oil burner-service subcontractor who serviced the burner; and defendant Manuel being the mason subcontractor who installed the chimney. After completion of the job a fire occurred. Based on breach of contract, plaintiff has sued the general contractor; and, based on negligence, plaintiff has sued him and the three subcontractors named, to recover damages for injuries to Ms person and property. The general contractor asserted a counterclaim against plaintiff for the balance due him for his work. The general contractor also asserted a cross claim over against the subcontractors Makeever and Manuel. The subcontractor Leiding asserted a cross claim over against the general contractor and the subcontractors Makeever and Manuel. The subcontractor Manuel asserted a cross claim over against the general contractor and the subcontractors Makeever and Leiding. Based on an insurance policy, the general contractor Lindstrom also instituted a third-party action against his insurer, Queen Insurance Company of America. As to the heating subcontractor Makeever, the action was severed because of his failure to appear at the trial. The parties cross-appeal from the judgment of the Supreme Court, ¡Nassau County, rendered March 23, 1959, after a nonjury trial, the judgment being: (1) in favor of plaintiff for $2,796.98 against defendant Lindstrom; (2) in favor of defendant Lindstrom, as third-party plaintiff, for $6,936.93 against the insurer third-party defendant; (3) in favor of defendants Leiding and Manuel dismissing the complaint against them; (4) in favor of said two defendants dismissing the defendant Lindstrom’s cross claims against them; (5) in favor of defendants Lindstrom and Manuel dismissing the defendant Leiding’s cross claims against them; and (6) in favor of defendants Lindstrom and Leiding dismissing the cross claims of defendant Manuel against them. The insurer third-party defendant appeals from the entire judgment. Defendant Lindstrom appeals from so much of the judgment as is in favor of the plaintiff against him and as awarded him $6,936.93 against the insurer on the ground that said sum is inadequate. Defendant Manuel appeals from so much of the judgment as dismissed his cross claims against defendants Lindstrom and Leiding. Defendant Leiding appeals from so much of the judgment as dismissed her cross claims against defendants Lindstrom and Manuel. Appeal of the insurer tMrd-party defendant, insofar as it is from the third, fourth, fifth and sixth decretal paragraphs (which dismissed plaintiff’s complaint against defendants Leiding and Manuel, and which dismissed the respective cross claims of defendants Lindstrom, Leiding and Manuel against each other), dismissed without costs. The third-party defendant is not a party aggrieved by such portions of the judgment. Judgment, insofar as appealed from and insofar as the appeal has not been dismissed, affirmed, with costs to the plaintiff payable by the third-party defendant. Under the terms of the agreement between plaintiff and the general contractor, defendant Lindstrom, the latter was required to install a suitable heating plant and chimney. The chimney was actually constructed by defendant Manuel, as subcontractor, and the heating plant by defendant Makeever, as *814subcontractor. The general contractor was properly cast in damages to plaintiff, because the fire was the proximate result of the negligence of the said general contractor, in that, both prior to and after starting the use of the heating plant, he failed to remove from the chimney a terra-cotta lining which defendant Manuel, properly and in good practice, had installed in the chimney. Prior to the fire the general contractor had notice that the heating system was not functioning properly, and he had sufficient opportunity to discover and eliminate the defect. The third-party defendant, the insurer, had issued a liability insurance policy to the general contractor, but disclaimed liability, after proper notice, upon the ground that the policy, coneededly, did not cover the operations of subcontractors. The insurer had no right to disclaim. The plaintiff pleaded negligence of the insured (the general contractor) as well as negligence of subcontractors. It is immaterial that plaintiff’s allegations included liability not covered by the policy. Since plaintiff’s claim included liability which was within the policy coverage, it was the insurer’s obligation to defend (Doyle v. Allstate Ins. Co., 1 N Y 2d 439). The insured, as demonstrated (supra), has been held responsible for his own negligence. The judgment includes a recovery of $3,513 for property damage against the insured defendant third-party plaintiff (the general contractor), and over against the insurer third-party defendant. In the course of the trial of the primary action, at the request of the plaintiff, the insured (general contractor) stipulated that if the damage appraiser were called, he would testify that the property damage was in the stated amount. The insurer was not a party to the stipulation, and specifically noted, upon the record, that it refused to participate therein. Such refusal was of no consequence. When an insurer unjustifiably disclaims upon the ground that the claim is outside the policy coverage, the insurer is bound, not only by any judgment against the assured, but also by any reasonable compromise or settlement made by the insured (Matter of Empire State Sur. Co., 214 N. Y. 553; Cardinal v. State of New York, 304 N. Y. 400, motion for reargument denied 304 N. Y. 732, motion to amend remittitur denied 304 N. Y. 875, cert. denied 345 U. S. 918). Since the disclaiming insurer would have been bound by a reasonable settlement or compromise of the entire cause of action, it should certainly be bound by the instant stipulation, if reasonable. There is no proof, in the record, of unreasonableness of the stipulation. In the absence of such proof, the stipulation was binding upon the insurer third-party defendant (cf. Conner v. Reeves, 103 N. Y. 527; Steinbock v. Evans, 122 N. Y. 551, 556; Dunn v. National Sur. Co., 80 App. Div. 605, affd. 178 N. Y. 552). Beldock, Kleinfeld, Christ and Pette, JJ., concur; Nolan, P. J., concurs in result with the following memorandum: I am unable to agree with the conclusion that under the circumstances here disclosed the insurer would be bound by a judgment against its insured (the general contractor), and by any reasonable compromise or settlement; or that the insurer as third-party defendant should be bound by the stipulation, if reasonable. The third-party plaintiff’s (the insured’s) stipulation as to the evidence of property damage, and his failure to offer evidence to the contrary amounted, in effect, to an agreement to pay the amount stated, if he should be held liable for such damage. The agreement and the stipulation could have been entirely reasonable, even though a possibility might have existed that if the claim were contested a recovery in a lesser amount would have resulted. But no matter how reasonable the agreement and stipulation may have been, they were not conclusive against the insurer third-party defendant which, if able to do so, was still at liberty to offer proof that plaintiff’s claim for property damage in the amount stated exceeded the third-party plaintiff’s (the insured’s) legal liability therefor. No such proof was offered. In the absence of such proof and in the absence of *815proof of fraud or collusion on the part of the third-party plaintiff, judgment was properly awarded against the third-party defendant in the amount of the property damage established against the third-party plaintiff (Conner v. Reeves, 103 N. Y. 527, 531, 532).

Order, Supreme Court, New York County (Louis B. York, J.), entered February 28, 2006, which, in an action for personal injuries sustained when plaintiff was assaulted in defendant restaurant, denied defendant landlord’s motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint as against defendant 710 Amsterdam Associates, L.L.C. The record establishes that defendant transferred full possession and control of the space where the assault occurred to the restaurant’s owners, and never exercised any control whatsoever over either the operation of the restaurant or the conduct of its patrons. Therefore, defendant cannot be held hable on the theory that it failed in its common-law duty to take reasonable measures to secure the restaurant against foreseeable criminal activity (see Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 232-*300233 [2001]), even if it was on notice of the history of criminal activity at the restaurant (see id. at 232 [foreseeability alone does not define duty; it merely determines the scope of the duty once it is determined to exist]). Nor can defendant be held liable under Real Property Law § 231 (2). A restaurant is not an “unlawful trade, manufacture or business.” To the extent plaintiff invokes the restaurant’s repeated violations of the Alcoholic Beverage Control Law, while the record tends to show a correlation between past incidents of violence at the restaurant and inebriation, there is no evidence of a causal relationship between the assault committed on plaintiff and the restaurant’s violation of a particular provision of the Alcoholic Beverage Control Law (see Maria S. v Willow Enters., 234 AD2d 177, 178-179 [1996]). We have considered and rejected plaintiff’s other arguments. Concur—Andrias, J.P., Friedman, Marlow, Nardelli and Catterson, JJ.

Appeal by defendant (1) from a judgment of the County Court, Nassau County, rendered January 16, 1959, convicting him, after a jury trial, of assault in the second degree, and sentencing him to serve a term of one to five years and to pay a fine of $1,000, the execution of the prison term being suspended and the fine having been thereafter paid; and (2) from every intermediate order made in the action. While defendant was convicted of assault in the second degree, he had been indicted and tried for manslaughter in the same degree. Judgment reversed upon the law and the facts, fine remitted, and a new trial ordered. In our opinion, the verdict was against the weight of the evidence. The proof was sufficient to warrant a finding that, within the meaning of subdivision 3 of section 242 of the Penal Law, defendant inflicted “ grievous bodily harm ” upon the deceased by kicking her in the abdomen with such force as to rupture her liver, which resulted in her death. We find no evidence, however, that when defendant did so, he had the coextensive intent to inflict any “grievous bodily harm” on decedent. Proof of such an intent is an essential element of the crime of assault in the second degree (People v. Katz, 290 N. Y. 361; People v. Finn, 275 App. Div. 65; People v. Smith, 285 App. Div. 590). We are also of the opinion that the trial court’s charge as to assault in the third degree did not fully and adequately explain the differences between that crime and assault in the second degree. The jury might have found defendant guilty of assault in the third degree following a proper charge and, while defendant took no exception, we may order a new trial in the interests of justice (People v. Smith, supra; People v. Coleman, 7 A D 2d 155; People v. Wood, 10 A D 2d 231; Code Crim. Pro., § 527). No separate appeal lies from the intermediate orders, which have been reviewed upon the appeal from the judgment of conviction. Nolan, P. J., Beldock, Kleinfeld, Christ and Pette, JJ., concur.

Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered November 23, 2005, which granted defendant’s motion for summary judgment dismissing the complaint as time-barred, unanimously modified, on the law, the motion denied with respect to the first cause of action, and otherwise affirmed, without costs or disbursements. In its first cause of action, plaintiff, a reseller of telephone service over lines provided by defendant, alleges that it entered into a contract with defendant, to begin July 1, 1994 and end September 1, 1997, under which the latter was to provide a quantity of lines with certain features, including automatic route selection (ARS), originally an option that plaintiff did not select but to which the Public Service Commission ruled it was entitled under the contract rate. Although defendant billed and plaintiff paid for ARS, plaintiff alleges the feature was never actually provided. Plaintiff stopped paying for ARS-related charges in May 1997, and defendant denied plaintiff access to its ARS network for nonpayment on November 25, 1997. In its second cause of action, plaintiff alleges that another feature of the lines was “hot cut” conversion from analog to digital service that defendant failed “in numerous instances to success*301fully provide” without service interruptions or other problems. This action was commenced on November 22, 2000 and seeks lost profits. Since there is no dispute that the governing Public Service Commission tariffs limit defendant’s liability for service omissions to gross negligence or willful misconduct, and since plaintiff is seeking consequential tort damages in the form of lost profits, the applicable statute of limitations is three years (CPLR 214 [4]; see Columbe v New York Tel. Co., 102 AD2d 909 [1984]). Defendant argues that the action is time-barred because the wrongs complained of—failure to provide ARS and the hot cut conversion—occurred, at the latest, on September 1, 1997, when the contract expired, ending any obligation on its part to provide these services to plaintiff. The argument is incorrect in two respects. First, under governing PSC Tariff 900, if plaintiff neither elected an additional service period nor requested discontinuance of service, service was to be continued at the current monthly rate for 12 additional months. Thus, the contract would not end until September 1, 1998. Defendant’s argument that plaintiff had repudiated the contract in May 1997, a time outside the applicable three-year statute of limitations, is belied by defendant’s December 19, 1997 letter electing its remedy for the aforesaid breach, i.e., to terminate service effective January 19, 1998, which is within the three-year limitations period. Thus, the claim as to the lack of ARS service is timely. Plaintiffs other argument, that defendant’s duty to provide the lines was a continuing one, such that the statute of limitations began to run from the commission of the last wrongful act (see Statistical Phone Philly v NYNEX Corp., 116 F Supp 2d 468, 484 [SD NY 2000]), is unpreserved and we decline to reach it. With respect to the hot cut, plaintiff does not identify the date of any wrongful act, although documents in the record indicate that the last service problem occurred on July 14, 1997, more than three years before commencement of the action. Concur—Andrias, J.P., Saxe, Sullivan and Gonzalez, JJ.

Order, Supreme Court, New York County (Michael D. Stall-man, J.), entered August 26, 2005, which, upon granting plaintiff’s motion to confirm the report of a special referee, *302granted plaintiff’s separate motion for a default judgment against defendant Scott St. John, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the motion to confirm denied, the motion for a default judgment denied, and the matter remanded for further proceedings. St. John is directed to answer the complaint within 30 days of service of a copy of this order with notice of entry. On May .12, 2003 plaintiff commenced this action against, among others, defendant Scott St. John. Plaintiff’s process server, Harry Torres, attempted to serve St. John on two occasions—September 8 and 9, 2003—at 422 East 89th Street, apartment 4C, New York, NY, before affixing a copy of the summons and complaint to the door of that apartment on September 10, 2003. Torres mailed an additional copy of the initiatory papers to that address two days later. St. John did not answer the complaint. In April 2004 plaintiff moved for a default judgment against St. John (see CPLR 3215). In opposition St. John asserted that he did not receive any papers relating to the action until May 3, 2004. St. John maintained that he moved from the 422 East 89th Street apartment to a unit at 333 East 95th Street on or about August 15, 2003, approximately three weeks before the alleged efforts to serve him were undertaken. St. John submitted a copy of a lease, executed on August 6, 2003, pursuant to which he leased the unit at 333 East 95th Street for a term commencing on September 1, 2003 and terminating August 31, 2004. In reply, plaintiff argued that, assuming St. John had moved prior to service, he was estopped from asserting that the East 89th Street unit was not his actual dwelling place or usual place of abode. Supreme Court referred the matter to a referee to hear and report with respect to whether St. John was properly served and, if so, whether his default in answering should be excused. Following a hearing, the Referee found that service on St. John had been effected under CPLR 308 (4) and that St. John failed to demonstrate that his default in answering the complaint should be excused. Supreme Court granted plaintiffs motion to confirm the Referee’s report and his initial motion to enter a default judgment against St. John. We reverse. CPLR 308 (4) “permits a plaintiff to mail duplicate process to the defendant at his last known residence, but clearly requires that the ‘nailing’ be done at the defendant’s ‘actual place of business, dwelling place or usual place of abode.’ While there may be some question as to whether there is a distinction between ‘dwelling place’ and ‘usual place of abode,’ there has *303never been any serious doubt that neither term may be equated with the ‘last known residence’ of the defendant” (Feinstein v Bergner, 48 NY2d 234, 239 [1979] [footnote omitted]). The evidence adduced at the hearing overwhelmingly demonstrated that the initiatory papers were affixed not to the door of St. John’s actual dwelling place or usual place of abode, but to a prior residence. Accordingly, plaintiff failed to carry his burden of demonstrating, by a preponderance of the evidence (see Persaud v Teaneck Nursing Ctr., 290 AD2d 350 [2002]), that service was properly made (see Annis v Long, 298 AD2d 340 [2002]). Dismissal of the complaint as against St. John for lack of personal jurisdiction, however, is not warranted. St. John failed to notify the Department of Motor Vehicles of his change of address within 10 days of the change as required by Vehicle and Traffic Law § 505 (5). Thus, St. John is estopped from challenging the propriety of service made at the former address (see Kandov v Gondal, 11 AD3d 516 [2004]; see also Williams v Yassky, 199 AD2d 18 [1993]). Nevertheless, a default judgment should not be entered against St. John. St. John’s affidavit demonstrated both a reasonable excuse for his failure to interpose a timely answer and a potentially meritorious defense to the action (see CPLR 5015 [a] [1]). St. John therefore should be given an opportunity to serve an answer to the complaint. Concur—Andrias, J.P., Saxe, Sullivan, Gonzalez and McGuire, JJ.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered May 5, 2006, which granted the motion by defendants Park Avenue and Vaynshelbaum for summary judgment dismissing the complaint against them, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated against those defendants. *304Defendant Dr. Vaynshelbaum was the sole owner and only radiologist at Park Avenue Medical Imaging & Mammography. On February 21, 2001, plaintiff Dallas-Stephenson, then 50 years old, consulted Dr. Vaynshelbaum for a routine mammogram and sonogram. She reported no preexisting breast problems. The results of these tests and physical examination were unremarkable. In the fall of 2001, Dallas-Stephenson felt a mass in her right breast during a self-exam. She and her husband saw Dr. Vaynshelbaum on November 6 of that year. A mammogram performed on that date showed nothing abnormal. However, Dr. Vaynshelbaum testified at his deposition that his exam found “something there.” He stated that the lump had shown “a relatively quick growth,” but that the mammogram results made cancer unlikely. Dr. Vaynshelbaum recommended an immediate biopsy. Plaintiff Stephenson, the husband of Dallas-Stephenson, testified at his deposition that he specifically recalled Dr. Vaynshelbaum telephoning defendant NYU Medical Center to advise that he had a patient with a lump in her right breast which should be biopsied immediately. He also testified that Dr. Vaynshelbaum never stated the lump should be removed that day. Dr. Vaynshelbaum testified that his records indicated he referred Dallas-Stephenson to a surgeon, Dr. Cioroiu, that day for evaluation and consultation, although his records bore the notation “for surgery.” He also sent a letter report to the patient’s primary care physician, advising that Dallas-Stephenson was immediately sent to NYU Medical Center for biopsy, and that she was scheduled to see Dr. Cioroiu for surgery. At her first deposition, Dallas-Stephenson did not recall Dr. Vaynshelbaum discussing with her having the lump removed or a referral to a surgeon, particularly Dr. Cioroiu. However, she also indicated that she was having problems with the questions due to fatigue, and the deposition was adjourned. At her second deposition, she was asked if Dr. Vaynshelbaum had scheduled her to see “Dr. Cioroiu for surgery that day,” and she said no. In her affidavit in opposition to the motion for summary judgment, she stated Dr. Vaynshelbaum never referred her to Dr. Cioroiu on November 6, and never advised her to see a surgeon or to have the lump removed. After leaving Vaynshelbaum’s office, plaintiffs went straight to NYU Medical Center and saw defendants Drs. Moreira, a pathologist, and Waisman, a breast cancer specialist. Moreira performed a “fine needle aspiration” to obtain a tissue sample from the lump for analysis. He found the lump unlikely to be *305breast cancer based on its texture, shape and composition. He did state at his deposition that it was uncommon for this type of lump to develop in a 50-year-old woman. Moreira also testified that he advised Dr. Vaynshelbaum of his findings that day by telephone, and both agreed the lump should be removed. Moreira’s consultation sheet, which was also sent to Dr. Cioroiu, contains a note that due to the quick growth of the tumor, removal is recommended. Dallas-Stephenson testified at her deposition that she specifically asked Moreira twice if this tumor could ever become cancerous and he replied in the negative both times. When she asked if it should be removed, Moreira stated “you can if you want.” Dallas-Stephenson testified that based on this conversation, she saw no need to look into having the tumor removed. Moreira, however, believed she agreed to have it removed as soon as possible. Both plaintiffs testified that they did not receive calls or other communication from Dr. Vaynshelbaum to come in for follow-up exams. Dr. Vaynshelbaum, however, testified his office had a procedure to follow up contact with patients through letters and telephone calls. Although he did not know of his own knowledge whether Dallas-Stephenson was actually contacted, his records indicate that a “follow up letter” was sent on April 16, 2002, and a message left on plaintiffs answering machine on May 8. It is clear, however, that he did not personally contact Dallas-Stephenson after speaking with Dr. Moreira and did not personally follow up on whether she made or kept an appointment with Dr. Cioroiu, although he admitted that it was his responsibility to follow up to make sure that a patient referred for surgery kept the appointment. Dallas-Stephenson kept her annual gynecologist appointment but did not mention the lump in her breast because, as she testified at her deposition, she was seeing Dr. Vaynshelbaum for that problem. During a self-exam in September 2002, she noticed the lump had changed shape and become visibly noticeable. She saw Dr. Vaynshelbaum on October 16 and had an examination, a mammogram and a sonogram. Dr. Vaynshelbaum told plaintiffs that the findings of these tests were “probably” consistent with cancer, due to features of the tumor that were now present but were not there in the prior exam. There is no dispute that on this occasion, Dr. Vaynshelbaum sent Dallas-Stephenson to Dr. Cioroiu. While he stated he believed the tumor to be a hematoma, he wanted a further examination. In a letter sent to Dallas-Stephenson’s gynecologist, Dr. Vaynshelbaum recommended an immediate biopsy by Dr. Cioroiu. Unlike his prior report, he cc’d Dr. Cioroiu on this letter. *306Dr. Cioroiu performed an excision biopsy and advised Dallas-Stephenson that she had invasive cancer, and that only a radical mastectomy of the right breast and surrounding area would save her life. She sought a second opinion in December 2002 from Dr. Leslie Montgomery, a breast surgeon at Memorial Sloan-Kettering. Dr. Montgomery found a stage 2 tumor which she believed did not require a radical mastectomy but only a lumpectomy, followed by chemotherapy and radiation treatment. Dallas-Stephenson was still under Dr. Montgomery’s care at the time of her deposition. In support of their summary judgment motion, the radiology defendants submitted an affidavit from a board certified radiologist who found no indication that the lump was not properly evaluated in November 2001, that proper referrals to specialists were made at that time, and that there was no 11-month delay in the diagnosis. Plaintiffs submitted an expert’s affidavit stating, inter alia, that Dr. Vaynshelbaum departed from good and accepted medical practice in failing to send the patient for a tissue biopsy, ensure that she saw a surgeon, and obtain the results of the surgeon’s examination. Plaintiffs’ expert also found the failure to initially advise the patient of the need for a surgical consultation, as well as the failure to follow-up contact to press the need for surgical consultation, to be a departure from accepted medical practice. The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once the movant makes the required showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that precludes summary judgment and requires a trial (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The differences in testimony between the parties regarding whether Dr. Vaynshelbaum referred Dallas-Stephenson to a surgeon and recommended that she have the lump removed in November 2001 involve issues of credibility. The internal contradictions between Dr. Vaynshelbaum’s medical files and the patient’s report of examination raises additional credibility issues. Such credibility questions preclude the granting of summary judgment (Bonilla v Petrillo Realty Dev. Corp., 237 AD2d 115 [1997]). To establish a prima facie case of medical malpractice, a plaintiff must show that the doctor deviated from accepted medical practice and also that the alleged deviation proximately *307caused her injury (Koeppel v Park, 228 AD2d 288, 289 [1996]). A plaintiff’s expert opinion must demonstrate “the requisite nexus between the malpractice allegedly committed” and the harm suffered (Ferrara v South Shore Orthopedic Assoc., 178 AD2d 364, 366 [1991]). The threshold question in determining liability is whether the defendant doctor owed the plaintiff a duty of care. This is a question for the court, and generally not an appropriate subject for expert opinion (see Koeppel, 228 AD2d at 290). However, a doctor who actually treats a patient has “a duty of care” toward that patient (McNulty v City of New York, 100 NY2d 227, 232 [2003]). Here, Dr. Vaynshelbaum admitted he had found a “relatively quick growth” in the tumor for just a one month’s period of time. He insists that he referred the patient to a surgeon and wanted the biopsy done that day. He also advised Dallas-Stephenson’s general care doctor that she had an “ACR Category 4” lump, which is a “suspicious finding,” i.e., “findings suspicious of malignancy.” On the other hand, the “layperson’s report” Dr. Vaynshelbaum gave to his patient did not indicate anywhere that the lump was suspicious or possibly malignant, or that some other examinations were necessary. The recommendations portion did not check the boxes for further consultation or surgical consultation, but indicated only “Regular breast self-examination.” In short, there were no statements on any reports given to Dallas-Stephenson that indicated any abnormality or condition that required further medical follow-up treatment. Although he had a follow-up procedure in place, he did not know whether she was actually contacted. By his own admissions, Dr. Vaynshelbaum acknowledged it was his responsibility to make sure a patient referred for surgery kept the appointment, yet he made no inquiry as to whether this was done or whether he received reports from Dr. Cioroiu, the surgeon to whom he claims he referred plaintiff in November 2001. Additionally, plaintiffs’ expert established a causal connection between the alleged malpractice by the radiology defendants in November 2001 and Dallas-Stephenson’s condition. He specified that the lump in her breast, which had first been examined in November 2001, had grown over approximately 10 months into a “2.2 cm invasive ductal carcinoma with metastatic disease to three lymph nodes.” By Dr. Vaynshelbaum’s own testimony, the lump should have been removed in November 2001. There is no question that by October 2002, the cancer had spread substantially. At a minimum, this raises questions of fact as to whether the delay in treatment possibly attributable to the radiology defendants was not the proximate cause of the injury complained of (McMahon v Badia, 195 AD2d 445, 446 [1993]). *308Viewing the facts in the light most favorable to plaintiffs (J.E. v Beth Israel Hosp., 295 AD2d 281, 283 [2002], lv denied 99 NY2d 507 [2003]), we find questions of fact that preclude the grant of summary judgment. Concur—Mazzarelli, J.P., Marlow, Buckley, Sweeny and Kavanagh, JJ.

In an action to recover damages for personal injuries resulting from plaintiff’s participation in a father and son baseball game on grounds owned and controlled by defendant Board of Education, the board, pursuant to section 457-a of the Civil Practice Act, appeals from an order of the Supreme Court, Westchester County, dated January 11, 1960, denying its motion to dismiss the complaint, made at the close of all the evidence upon a jury trial, on the ground that the plaintiff had failed to prove facts sufficient to constitute a cause of action. The court originally reserved its decision on the motion and then submitted the case to the jury. The jury, having failed to agree, did not return a verdict and was discharged. Thereafter the court made the order appealed from denying the board’s motion to dismiss the complaint for failure of proof. Order affirmed, with $50 costs and disbursements. No opinion. Nolan, P. J., Kleinfeld and Christ,. JJ., concur; Beldoek and Ughetta, JJ., dissent and vote to reverse the order and to grant the motion to dismiss the complaint, with the following memorandum: Plaintiff, then about 46 years old, entered the grounds which the defendant board maintained exclusively for the children attending an adjacent public school, and engaged in playing baseball upon such grounds. In contravention of the board’s established rules he had not procured a license for such use. Hence, he was a trespasser. Even if it be assumed that, by reason of prior acquiescence, he was justified in regarding the field as available for his purposes, nevertheless he took the premises as he found them (Vaughan v. Transit Development Co., 222 N. Y. 79, 82; Platnick v. Feldman, 285 App. Div. 1086). In pursuit of a ball hit outside of third base, plaintiff fell and sustained an injury. He attributes his fall to the presence of a slope along the entire length of the foul line and about 20 feet therefrom. Although he had played on the field for about two hours prior to the accident and although part of such time he had played in the vicinity of third base, grass only one inch high caused him to regard the slope as level ground. In our opinion, under the circumstances, the plaintiff, irrespective of his status, assumed whatever risk was attendant upon the existence of the slope (Kimbar v. Estis, 1 N Y 2d 399, 404; Scala v. City of New York, 200 Misc. 475).

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about April 11, 2006, which denied the motion of defendants Ogden Bros. Collision and Lynch for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of Ogden and Lynch dismissing the complaint as against them. Lynch’s parking at an accident scene to tow a disabled vehicle was not one of the causes of the accident, but merely furnished the instrumentality by which plaintiff was injured when defendant Virgil’s car hit Lynch’s tow truck, causing the tow truck, in turn, to hit plaintiff (see Sheehan v City of New York, 40 NY2d 496, 503 [1976]). It is also clear that defendant Virgil’s negligence was the sole proximate cause of plaintiffs injuries (see id.; see also Baptiste v New York City Tr. Auth., 28 AD3d 385, 387 [2006]). Plaintiff identified no facts in the record possibly demonstrating that Ogden had failed to make appropriate inquiries upon hiring Lynch, or that Ogden had notice of any allegedly negligent conduct by Lynch while he was an employee of Ogden. As a result, the cause of action for negligent hiring and retention should have been dismissed (see Honohan v Martin’s Food of S. Burlington, 255 AD2d 627 [1998]). Concur—Friedman, J.P., Nardelli, Gonzalez, McGuire and Malone, JJ.

Judgment, Supreme Court, New York County (Walter B. Tolub, J.), entered September 27, 2006, denying relief from an earlier order that had denied petitioners’ application for permits and revocable consents from respondent New York City Department of Transportation (DOT) for the implementation and *309maintenance of a security plan for One Police Plaza, unanimously affirmed, without costs. Supreme Court’s order of October 15, 2004 (6 Misc 3d 814 [2004]) was also the subject of an appeal to this Court (18 AD3d 395 [2005], lv denied 6 NY3d 704 [2006]). That order primarily addressed challenges to the sufficiency of the environmental assessment statement (EAS) produced by respondents, pursuant to the rules of procedure for City Environmental Quality Review and the State Environmental Quality Review Act, with regard to the security plan for the Police Department’s headquarters. Supreme Court found that the EAS was inadequate and directed respondents, inter alia, to “undertake an environmental impact statement [EIS] with regards to the implementation of the One Police Plaza Security Plan and the delta barriers [installed] on Park Row,” namely, a more rigorous environmental study, and to complete the EIS within 90 days of the service of the court’s order (6 Misc 3d at 828). The order summarily denied the remainder of petitioners’ application without expressly addressing the individual claims, e.g., that respondents were required to obtain revocable consents from DOT for the use of public space necessary to implement and maintain the security plan. Unquestionably, evidence and arguments on this issue were submitted to the court, considered and subsequently included in the record on appeal. This Court then modified to the extent of deleting the 90-day deadline and otherwise affirmed, noting that “[w]e have considered petitioners’ remaining claims and find them without merit” (18 AD3d at 396). Thus, petitioners not only had a full and fair opportunity to litigate the issue of identical revocable consents, but it was actually litigated and decided against them; further litigation of that issue here is precluded by the doctrine of collateral estoppel (Kaufman v Eli Lilly & Co., 65 NY2d 449, 455-456 [1985]), and we affirm the judgment on that basis. With regard to petitioners’ application for relief from the prior order, we note that the alleged newly discovered evidence is a matter of public record which, for purposes of CPLR 5015 (a) (2), “is generally not deemed new evidence which could not have been discovered with due diligence before trial” (Federated Conservationists of Westchester County v County of Westchester, 4 AD3d 326, 327 [2004]). Concur—Sullivan, J.P., Williams, Buckley and Malone, JJ.

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered May 24, 2006, which, in an action for personal injuries by a videographer against sponsors of a dirt bike competition who had engaged plaintiffs employer to film the competition, granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Plaintiff asserts that defendants’ president asked her to film *311a rider who was standing on the ramp on the other side of the field because he was wearing defendants’ apparel, and, while doing so, she was hit by another rider who lost control of his bike. Plaintiff argues that she did not assume the risk of filming the far-off rider because he could only be filmed from the spot where she was standing and she was acting under the “inherent compulsion” of a specific instruction from her superior. The argument is contradicted by plaintiff’s deposition testimony that she could not recall whether defendants’ president told her to film the rider from the particular spot where she stood or whether she decided herself to continue standing there (see Maddox v City of New York, 66 NY2d 270, 279 [1985] [no basis to infer plaintiff acted under compulsion of unspoken order]). Even if plaintiff did recall an express order, there is no evidence that she complained to defendants’ president about any danger or that he directed her to continue standing where she was despite dangers known by or communicated to him (see Benitez v New York City Bd. of Educ., 73 NY2d 650, 659 [1989]; Bereswill v National Basketball Assn., 279 AD2d 292 [2001]). Concur— Mazzarelli, J.P., Andrias, Friedman, McGuire and Malone, JJ.

Determination after hearing by respondent Appeals Board, dated May 31, 2005, which revoked petitioner’s driver’s license, unanimously confirmed, the petition denied, and this CPLR article 78 proceeding (transferred to this Court by order of the Supreme Court, New York County [Alice Schlesinger, J.], entered March 6, 2006) dismissed, without costs. Respondent’s determination that petitioner, a New York City police captain, refused to consent to a chemical test to determine his blood alcohol level after being clearly warned of the consequences of such a refusal, is supported by substantial evidence (CPLR 7803 [4]; see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176 [1978]). The Administrative Law Judge was free to accept the testimony of the arresting officer as to petitioner’s apparent intoxication and to reject the testimony of the other officers (Matter of Soto v New York State Dept. of Motor Vehs., 203 AD2d 370 [1994]). In the face of such conflicting evidence, we are not permitted to weigh the evidence or reject the administrative agency’s determination of credibility (Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]), and in any event, we see no reason to do so here. *312Petitioner’s remaining objection is without merit, as his refusal clearly took place within two hours of his arrest (Vehicle and. Traffic Law § 1194 [2] [a] [1]). Concur—Mazzarelli, J.P., Andrias, Friedman, McGuire and Malone, JJ.

In an action to recover the face amount of a $20,000 fire insurance policy issued by defendant, the defendant appeals from a judgment of the Supreme Court, Kings County, dated June 8, 1960, for the full amount of the policy, in favor of plaintiff after a nonjury trial. The policy insured plaintiff in an amount not exceeding $20,000 to the extent of the actual cash value of the property (a brick apartment dwelling) at the time of loss, but not exceeding the cost of repairs or replacement. Defendant’s liability was also limited to the proportion of the loss which.the amount insured should bear to the whole insurance covering the property. Plaintiff was insured under another policy for $20,000, so that its whole insurance covering the property amounted to $40,000. Plaintiff settled with the second insurance company for $12,000. About seven months after the fire plaintiff, without repairing the property, sold it for $12,000. The learned trial court found that at the time of the fire the building had an actual cash value of $50,000 and that the cost of replacement was upwards of $40,000. The court awarded judgment against defendant for $20,000, holding that the amount received from the second insurance company should be credited against the cost of replacement, and that defendant was not entitled to credit for the $12,000 received by plaintiff on the sale oí the property after the fire. Judgment modified on the law and the facts by reducing the amount thereof to $12,000, plus interest and the costs of the action. As so modified, the judgment is affirmed, without costs. Findings of fact inconsistent herewith are reversed and new findings are made as indicated herein. On consideration of all the facts and circumstances disclosed by the record, which in our opinion logically tend to the formation of a correct estimate of the loss (cf. McAnarney v. Newark Fire Ins. Co., 247 N. Y. 176), we find that the actual cash value of the property at the time of the loss was $24,000, and that such amount was considerably less than the cost of repair or replacement, which a witness eaEed by defendant had estimated in an amount upwards of $30,000. Defendant is required to pay to plaintiff, however, only $12,000 of the loss, as limited by such actual cash value, since plaintiff has already received $12,000 from the other insurance company. The trial court properly refused to reduce defendant’s liability by giving it a further credit in the amount received by plaintiff on the sale of the property after the fire. Plaintiff’s loss was required to be computed as of the time of the fire and defendant was not entitled to credit for any payment made for the property by a third party, not on defendant’s behalf, or on behalf of any other insurer (cf. Tiemann v. Citizens’ Ins. Co., 76 App. Div. 5; Rosenbloom v. Maryland Ins. Co., 258 App. Div. 14; Foley v. Manufacturers’ Fire Ins. Co., 152 N. Y. 131). Nolan, P. J., Beldock, Ughetta, Kleinfeld and Christ, JJ., concur. [25 Misc 2d 828.]

Judgment, Supreme Court, New York County (James A. Yates, J.), rendered January 14, 2005, convicting defendant, after a jury trial, of burglary in the second degree, attempted burglary in the second degree and possession of burglar’s tools, and sentencing him, as a persistent violent felony offender, to an aggregate term of 16 years to life, unanimously affirmed. Since defendant did not make the specific arguments before the trial court that he raises on appeal, his present challenges to the legal sufficiency of the evidence are unpreserved (People v Gray, 86 NY2d 10 [1995]), and we decline to review them in the interest of justice. Were we to review these claims, we would find that the verdict was based on legally sufficient evidence. Although the occupants of the burglarized apartment did not testify, there was sufficient evidence, including a videotape of the scene and testimony from the occupants’ grandson, who was familiar with his grandparents’ living arrangements, to establish that the apartment was “usually occupied by a person lodging therein at night,” and thus a “dwelling” under Penal Law § 140.00 (3). The fact that defendant was found in a portion of the apartment used by the occupants as a home office is irrelevant to defendant’s criminal liability. Defendant’s remaining sufficiency arguments and his challenges to the court’s jury charge and to remarks made by the court and prosecutor during jury selection are likewise unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find them without merit. Concur—Mazzarelli, J.P., Andrias, Friedman, McGuire and Malone, JJ.

In a negligence action to recover damages for injuries to person and property, for medical expenses and for loss of services, defendants appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Richmond County, entered October 21, 1959, after a nonjury trial, as awards $7,000 to plaintiff Gertrude Goodrich for her personal injuries, and $1,500 to her husband, plaintiff Carl Goodrich, for medical expenses and for the loss of his wife’s services. Judgment, insofar as it is in favor of plaintiff Gertrude Goodrich, affirmed, with costs. Judgment, insofar as it is in favor of plaintiff Carl Goodrich, reversed on the facts and, as to such plaintiff, the action is severed and a new trial granted, with costs to abide the event, unless, within 20 days after entry of the order hereon, said plaintiff shall stipulate to reduce the damage award in his favor from $1,500 to $500; in which event, the judgment, as to him, as so reduced, is affirmed, without costs. The record does not support the award of $1,500 to the plaintiff husband, Carl Goodrich. Except for a medical bill of $145, no evidence was adduced as to the medical expenses which he incurred for his wife or as to the loss of her services. Beldock, Acting P. J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur.

In a proceeding under article 78, of the Civil Practice Act, to review a determination of the State Rent Administrator who held that five apartments in a co-operative apartment house containing 16 apartments were not eligible for decontrol, the Administrator appeals from an order of the Supreme Court, Kings County, dated March 29, 1960, granting petitioner’s application and annulling the Administrator’s determination. Order reversed on the law and the facts, with costs, determination of State Rent Administrator reinstated, and proceeding dismissed. Findings of fact inconsistent herewith are reversed, and new findings are made as indicated herein. The record supports the Administrator’s finding that the five subject apartments in the co-operative apartment house here involved were vacated by tenants or sublessees and not by their owners. Therefore, these five apartments were subject to control by the Administrator pursuant to paragraph (i) of subdivision 2 of section 2 of the Emergency Housing Rent Control Law (L. 1946, ch. 274, as amd.) and subdivision 12 of section 9 of the State Rent and Eviction Regulations. The learned Special Term erred in holding that the five apartments were decontrolled. The interpretation of the rent regulations by the Rent Administrator is entitled to great weight. His finding that these five apartments were not decontrolled is not arbitrary, capricious or unreasonable, and is supported by the evidence in this record (Bowles v. Seminole Rock Co., 325 U. S. 410, 413, 414; Matter of Schwartz v. McGoldrick, 206 Misc. 444, 447; Lightbody v. Russell, 293 N. Y. 492). The authorities which hold that an owner of a co-operative apartment may evict a tenant if he seeks possession in good faith for self-occupancy without a showing of immediate and compelling necessity (Matter of Wattley v. State Rent Comm., 280 App. Div. 762, affd. 304 N. Y. 819; Matter of Flamman v. McGoldrick, 279 App. Div. 854; Matter of Massey v. Temporary State Housing Rent Comm., 279 App. Div. 1090), have no application here. In our opinion, an apartment in a co-operative apartment house becomes decontrolled only when it is vacated by an owner, and not by a *820tenant or a sublessee (Emergency Housing Rent Control Law, § 2, subd. 2, par. [i]; L. 1946, eh. 274, as amd.; State Rent and Eviction Regulations, § 9, subd. 12). Nolan, P. J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur.

*313Order and judgment (one paper), Supreme Court, New York County (Carol R Edmead, J.), entered April 19, 2006, which denied petitioner landlord’s application to annul the determination of respondent New York State Division of Housing and Community Renewal (DHCR) establishing the legal rent for the subject rent-stabilized apartment, and dismissed the petition, unanimously affirmed, without costs. The statements made by Supreme Court in a prior action brought by petitioner against the tenants for a declaration that the subject apartment is rent stabilized, and seeming to determine the base date, were dicta, not relevant to the issue of stabilized status, not final on the issue of legal rent, inconsistent with the court’s acknowledgment that establishment of legal rent was a matter for DHCR, and not binding on DHCR. In establishing the legal rent on petitioner’s application under Rent Stabilization Code (9 NYCRR) § 2522.6, DHCR’s reliance on a schedule of fair market rents maintained by the Department of Housing and Urban Development was consistent with DHCR’s broad equity discretion to issue orders “with due regard for protecting tenants and the public interest against unreasonably high rent increases” (9 NYCRR 2522.7), at least where petitioner’s comparables were for apartments that were not subject to rent stabilization and petitioner failed to submit any information as to how the rents for its claimed comparables were calculated (see Matter of Parcel 242 Realty v New York State Div. of Hous. & Community Renewal, 215 AD2d 132, 134 [1995], lv denied 86 NY2d 706 [1995]; cf. Matter of Weinreb v New York State Div. of Hous. & Community Renewal, 293 AD2d 397, 398 [2002], lv denied 98 NY2d 610 [2002]). The legal rent was properly made effective as of 30 days after the filing of petitioner’s application (9 NYCRR 2522.2), and, given a determination that doubled the rent, it was not arbitrary and capricious for DHCR to direct that arrears be paid over a two-year period (see Matter of Kramer v New York State Div. of Hous. & Community Renewal, 306 AD2d 172 [2003], lv denied 2 NY3d 707 [2004]). We have considered petitioner’s other arguments and find them unavailing. Concur—Mazzarelli, J.P., Andrias, Friedman, McGuire and Malone, JJ.

In a proceeding pursuant to section 1458 of the Civil Practice Act, to stay arbitration, petitioner appeals from an order of the Supreme Court, Nassau County, dated October 27,1960, denying its motion for a stay. Respondent, a contractor, in accordance with an arbitration clause contained in “ General Conditions ” allegedly incorporated by reference into a contract known as “ The Standard Form of Agreement Between Contractor and Owner For Construction of Buildings ”, issued by the American Institute of Architects, has demanded that the parties proceed to arbitration on said respondent’s claims for (1) a balance of $232,208.50 claimed to be due on the contract, (2) extra work amounting to $191,909.36, and (3) damages in the sum of $100,823.93 for alleged interference and delays caused by petitioner. Order reversed on the law, without costs, and motion granted to the extent of staying arbitration pending the determination by the court, pursuant to sections 1450 and 1458 of the Civil Practice Act, of' the issues: (1) whether petitioner agreed to arbitration; and (2) whether the demand for arbitration was timely made. The findings of fact implicit in the opinion or decision of the Special Term are not affirmed. A question of fact is' presented as to petitioner’s awareness of the existence of the arbitration clause in the “ General Conditions ”, particularly in view of the signing or initialing of all undisputed papers. The timeliness of said respondent’s demand for arbitration is also an issue for determination by the court (Matter of Board of Educ., City School Dist., of New Rochelle v. Bernard Associates No. 3, 11 A D 2d 1038). Beldock, Acting P. J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur.

In a habeas corpus proceeding by a father against his former wife to obtain the custody of their two infant children, the proceeding having been remitted by this court to the Special Term for a hearing (Matter of Pelaez, 8 A D 2d 743), the mother appeals from an order of the Supreme Court, Westchester County, dated February 10, 1960, made after the hearing and after reargument and rehearing, sustaining the writ, directing the mother forthwith to deliver the children to the father (the petitioner), and awarding custody of the children to him except during the vacation period between the termination of the Spring school term and the commencement of the Fall school term when custody is given to the *821mother. Order reversed on the facts and in the exercise of discretion, without costs, and proceeding remitted again to the Special Term for the purpose of taking further proof as to the present status of the petitioner (the father) and as to the welfare of the children, and for the purpose of making a new determination based on all the proof which may be adduced. Upon the argument of this appeal petitioner’s counsel stated that the petitioner, who was a resident of Cuba and a citizen of the United States, had returned to the United States. In view of the provisions of the divorce decree entered in Cuba and in view of the financial and international situation affecting American citizens presently residing in Cuba or who previously resided there, a new determination should be made in this proceeding after a consideration of all the circumstances, including those affecting the petitioner as a result of the developments in Cuba. Beldock, Acting P. J., Ughetta, Kleinfeld, Pette and Brennan, JJ., concur. [23 Misc 2d 423.]

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered May 11, 2006, which, to the extent appealed from, *314denied the motion of defendant Roadway Contracting for summary judgment dismissing the complaint against it, unanimously affirmed, without costs. Roadway failed to establish prima face entitlement to summary dismissal. Evidence that the metal plates were constantly being dislodged by construction vehicles in the area raised a triable issue of fact as to whether Roadway had inadequately placed the plates in such a manner as to allow their shifting or moving, thereby creating a dangerous condition that existed at the time of the accident (see Cuevas v City of New York, 32 AD3d 372 [2006]). The deposition testimony of Roadway’s employee that these plates were being dislodged raised a further issue as to whether they had been properly secured in compliance with New York City Highway Rules (34 RCNY) § 2-11 (e) (10) (iii) (see Hoehn v Consolidated Edison Co. of N.Y., 205 AD2d 734 [1994]). Even assuming Roadway did not create the dangerous condition, its employee’s testimony raised an issue of fact as to whether it had constructive notice of an ongoing and recurring dangerous condition that was routinely being left unaddressed (see Irizarry v 15 Mosholu Four, LLC, 24 AD3d 373 [2005]). Concur—Mazzarelli, J.P., Andrias, Friedman, McGuire and Malone, JJ.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered March 20, 2006, which granted defendant’s motion to dismiss the complaint as barred by the statute of limitations, unanimously affirmed, with costs. Plaintiff, a Chinese corporation, alleges that in June 2000 it shipped men’s apparel to the United States. After the goods arrived in customs at New York City, the buyer failed to consummate the purchase for lack of the necessary financing. Plaintiff *315thereupon agreed to sell a portion of the apparel to defendant, for a total price of $1,350,000. On or about August 1, 2000, defendant made a partial payment of $298,335.36. Plaintiff alleges that upon subsequent inspection, defendant noted substantial defects and demanded a discounted price. On or about October 26, 2000, the parties executed a “settlement” agreement, pursuant to which plaintiff agreed to sell the apparel to defendant at the reduced price of $598,335.36, with a credit for the prior payment. On the same date the parties also executed mutual general releases. Plaintiff alleges that defendant failed to pay the $300,000 balance as set forth in the agreement. This action was commenced in June 2005, alleging breach of contract, breach of the covenant of good faith and fair dealing, fraud, unjust enrichment, quantum meruit and conversion. The court correctly perceived that the “settlement” agreement was in fact a modification of the parties’ original contract for the sale of goods. A six-year statute generally governs breach-of-contract claims “except as provided in . . . article 2 of the uniform commercial code.” (CPLR 213 [2].) The court appropriately applied the four-year statute of limitations in UCC 2-725 (1) (Levin v Hoffman Fuel Co., 94 AD2d 640 [1983], affd 60 NY2d 665 [1983]). The fact that the complaint asserts various other causes of action, such as for fraud and breach of contract, is of no moment. The causes of action in the complaint are all premised on the same allegation, namely, nonpayment for goods, thus invoking the four-year statute (see Herba v Chichester, 301 AD2d 822 [2003]). In light of our disposition, it is unnecessary to reach defendant’s other points in response. Concur—Mazzarelli, J.P., Andrias, Friedman, McGuire and Malone, JJ.

In three consolidated actions to recover damages for injuries to person and property, for medical expenses and for loss of services, the parties cross-appeal from a judgment of the Supreme Court, Kings County, entered October 19, 1959, after a jury trial, upon a verdict in favor of the several plaintiffs against defendant Goldberg, and in favor of defendants Rosen and Emar Service Corp. (doing business as Utopia Auto Laundry), dismissing as against them the plaintiffs’ several complaints. Defendant Goldberg appeals from the whole judgment. All the plaintiffs appeal from the judgment insofar as it dismisses their respective complaints against defendants Rosen and Emar Service Corp. Judgment, insofar as it is against defendant Goldberg and in favor of each of the plaintiffs, other than the plaintiff Sadie Cohen, affirmed, without costs. Judgment, insofar as it is against defendant Goldberg and in favor of plaintiff Sadie Cohen (in Action No. 2), reversed on the facts and, as to said plaintiff, the action is severed and new trial granted, with costs to abide the event, unless, within 20 days after entry of the order hereon, said plaintiff shall stipulate to reduce the verdict in her favor from $100,000 to $75,000; in which event the judgment in her favor, as so reduced, is affirmed, without costs. Appeal by defendant Goldberg, insofar as it is taken from the portions of the judgment which dismiss the plaintiffs’ respective complaints against defendants Rosen and Emar Service Corp., dismissed. As to such portions of the judgment the defendant Goldberg is not a party aggrieved. On plaintiffs’ appeal: Judgment, *822insofar as it dismisses their respective complaints against defendants Rosen and Emar Service Corp., affirmed, without costs. In our opinion, the verdict in favor of the plaintiff .Sadie Cohen is excessive. Nolan, P. J., Beldock, Christ, Pette and Brennan, JJ., concur.

In an action by 89 tenants against a landlord pursuant to subdivision 6 of section 11 of the Emergency Housing Rent Control Law (L. 1946, ch. 274, as amd. by L. 1957, ch. 755), to recover overpayments of rent in excess of the maximum rent, pursuant to a determination of the State Rent Administrator revoking retroactively rent increases and directing the refund of the excess rent collected, the landlord appeals from an order of the Supreme Court, Westchester County, dated January 26, 1960, denying her motion: (a) to dismiss the complaint, pursuant to rule 106 of the Rules of Civil Practice, on the ground that it does not state facts sufficient to constitute a cause of action; and (b) to dismiss the complaint, pursuant to rule 107 of the Rules of Civil Practice, on the ground that the causes of action stated in the complaint did not accrue within the time limited by law for their commencement. Order affirmed, with $10 costs and disbursements. (See Matter of Selig v. Caputa, 12 A D 2d 821.) Defendant’s time to answer the complaint is extended until 20 days after entry of the order hereon. Nolan, P. J., Beldock, Kleinfeld, Christ and Pette, JJ., concur.

Judgment, Supreme Court, New York County (Michael R. Ambrecht, J., on speedy trial motion; Ronald A. Zweibel, J., at suppression hearing, jury trial and sentence), rendered September 9, 2004, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4V2 to 9 years, and judgment, same *316court (Ronald A. Zweibel, J.), rendered December 13, 2004, convicting defendant, upon his plea of guilty, of bail jumping in the second degree, and sentencing him, as a second felony offender, to a concurrent term of 2 to 4 years, unanimously affirmed. Defendant’s speedy trial arguments are unpreserved and we decline to review them in the interest of justice. Defendant’s motion stated in conclusory terms that the People were not ready for trial within six months, and when the People identified periods that should be excluded, defendant did not reply (see People v Goode, 87 NY2d 1045 [1996]). Were we to review the claims, we would find that the record supports the court’s findings of excludability with respect to each of the three periods at issue. The court properly denied defendant’s motion to suppress, as fruit of an unlawful detention, the purchasing undercover officer’s confirmatory identification. The testimony of the purchasing officer together with that of the arresting officer, which included the detailed description of defendant that was radioed following the sale and testimony that he was the only person in the vicinity matching the description, demonstrated that there was probable cause for the arrest (see e.g. People v Soto, 260 AD2d 235 [1999], lv denied 93 NY2d 979 [1999]). The court’s charge on the agency defense conveyed the appropriate legal standards, and the court properly instructed the jury with regard to the relationship to that defense of an incidental benefit received from the buyer (see People v Job, 87 NY2d 956 [1996]; People v Davis, 273 AD2d 104 [2000], lv denied 95 NY2d 933 [2000]). In any event, defendant’s own testimony negated his agency defense when he admitted that his desire to obtain drugs as compensation for arranging the transaction was not incidental, but was his sole motivation (see People v Sanchez, 35 AD3d 161 [2006]). Concur—Saxe, J.P., Sullivan, Nardelli, Gonzalez and Kavanagh, JJ.

In an action to foreclose a mortgage made by defendant Lillian Snyder, covering a one-family house owned by her, in which she asserted *823counterclaims, based on misrepresentation and fraud, for the cancellation of the mortgage and the accompanying bond, said defendant and her husband, defendant Edward Snyder, appeal: (1) from an order of the Supreme Court, Nassau County, dated June 2, 1960, which denied their motion to open their default in appearing for trial, to set aside the inquest and to restore the action to the Trial Calendar; and (2) from the judgment of foreclosure of said court, entered August 25, 1960, upon said inquest. Order reversed, motion granted, default opened, action restored to the Trial Calendar, and inquest and foreclosure judgment vacated, on condition that, within 20 days after entry of the order hereon, the said Snyder defendants shall pay to the plaintiff the sum of $100 together with $10 costs and disbursements on the appeal from the order. In the event said defendants fail to comply with this condition, the order is affirmed, with $10 costs and disbursements to the plaintiff and the appeal from the judgment is dismissed. No appeal lies from a default judgment. Said defendants made a sufficient showing of merit and, under all the circumstances, their default should be opened upon the condition stated. Beldock, Acting P. J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur.

Order, Supreme Court, New York County (Herman Cahn, J.), entered March 10, 2006, which granted the motions by defendants Slaine and Danziger for summary judgment dismissing the complaint against them, and denied plaintiffs’ motion for partial summary judgment, unanimously affirmed, with costs. Plaintiffs, shareholders of defendant Rand Publishing Co., allege, inter alia, breach of fiduciary duty and usurpation of corporate opportunities by Slaine and Danziger, also Rand shareholders, in connection with said defendants’ acquisition of four companies on behalf of another entity of which those defendants were full-time employees. It is well settled that the law of the state in which an entity was incorporated (here, Delaware) is controlling as to matters relating to its internal affairs (Carroll v Weill, 2 AD3d 152, 153 [2003], lv denied 2 NY3d 704 [2004]). Under Delaware law, a fiduciary may “take a business opportunity for himself once his corporation has properly rejected the opportunity or if it is established that it is not in a position to take it” (Field v Allyn, 457 A2d 1089, 1099 [Del Ch 1983], affd 467 A2d 1274 [Del 1983]). Therefore, while “a corporate officer or director may not take a business opportunity for his own if: (1) the corporation is financially able to exploit the opportunity; (2) the opportunity is within the corporation’s line of business; (3) the corporation has *318an interest or expectancy in the opportunity; and (4) by taking the opportunity for his own, the corporate fiduciary will thereby be placed in a position inimicable to his duties to the corporation,” the corollary to this rule is that “a director or officer may take a corporate opportunity if: (1) the opportunity is presented to the director or officer in his individual and not his corporate capacity; (2) the opportunity is not essential to the corporation; (3) the corporation holds no interest or expectancy in the opportunity; and (4) the director or officer has not wrongfully employed the resources of the corporation in pursuing or exploiting the opportunity” (Broz v Cellular Info. Sys., Inc., 673 A2d 148, 155 [Del 1996]). Clearly, Rand lacked the funds to make any of the four acquisitions in question, much less all of them (see id.; Wolfensohn v Madison Fund, Inc., 253 A2d 72, 76 [Del 1969]). At the time the acquisitions were made, Rand’s assets consisted of approximately $1.2 million in cash and an illiquid investment of $1.25 million, whereas the cash purchase prices for the four subject entities totaled $31 million, and the buyer of one of the entities was also required to assume $18 million in liabilities. Although plaintiffs speculate that they were not afforded the opportunity to raise the requisite funds or that they might have been able to finance the purchases by some means other than having to put up the necessary cash, the fact remains that the Rand shareholders agreement made no provision for additional capital contributions from any of the stockholders, and none of the plaintiffs ever offered to invest any more money in Rand. It is thus clear that at the crucial point at which the employer of Slaine and Danziger acquired the properties (see Broz, 673 A2d at 156), Rand did not possess the financial capacity to purchase any of the four properties, and plaintiffs’ conjecture to the contrary is insufficient to raise a triable issue of fact in the absence of any concrete evidence that Rand had the requisite financial resources to avail itself of the opportunity to buy those entities. There is, similarly, no evidence that Rand had any interest or expectancy in the subject properties (id.). Indeed, it is undisputed that Rand had no exclusive right to the services of either individual defendant, and “a corporate officer or director is entirely free to engage in an independent, competitive business, so long as he violates no legal or moral duty with respect to the fiduciary relation that exists between the corporation and himself’ (Guth v Loft, Inc., 23 Del Ch 255, 280, 5 A2d 503, 514 [1939]). We have considered plaintiffs’ remaining arguments and find them unavailing. Concur—Saxe, J.P., Sullivan, Nardelli, Gonzalez and Kavanagh, JJ.

In an action to recover, inter alia, the commission due plaintiff, a lawyer, by reason of his claimed performance of a contract between him as a business broker and the individual defendants Hirsch who owned and controlled the defendant corporation, Welbilt Stove Co., Inc., pursuant tó which he (plaintiff) agreed to find a publicly owned corporation which said individual defendants could acquire by purchase of its capital stock or by merger, consolidation or exchange of stock with the said defendant corporation, plaintiff appeals —as limited by his brief — from so much of two orders of the Supreme Court, Queens County, dated respectively July 14, 1960 and September 14, 1960, as are adverse to him. As to the first order, plaintiff’s appeal (Appeal No. 1) is from those portions which grant defendants’ motion to vacate his notice, dated May 6, 1960, to examine them before trial; which deny his first cross motion to examine them before trial pursuant to an order of the court; and which deny his second cross motion to the extent that it seeks priority over them in the conduct of his examination before trial. As to the second order, plaintiff’s appeal (Appeal No. 2) is from those portions which deny his motion to vacate defendants’ notice, dated July 11, 1960, to examine him before trial; which direct him to submit to such examination on a specified date and to produce his books and records; which deny his motion to vacate in its entirety the defendants’ demand, dated July 11, 1960, for his bill of particulars; and which direct him to serve his bill in response to such demand as modified. Plaintiff’s motion to vacate defendants’ notice of examination was made on the grounds that such notice is improper and that he is entitled to priority in the conduct of his examination of them. The appeals from both orders have been consolidated and heard on one record. Order, dated July 14, 1960, modified as follows: (1) by striking out the first decretal paragraph which grants defendants’ motion to vacate plaintiff’s notice of examination before trial, and which vacates such notice; (2) by substituting therefor a paragraph denying such motion to vacate plaintiff’s notice of examination, and directing that the examination of the defendants pursuant to such notice shall proceed on 10 days’ notice or at such other time as may be mutually fixed by the parties; (3) by striking out the second decretal paragraph which denies plaintiff’s first cross motion for an order to examine defendants before trial; (4) by substituting therefor a paragraph denying such motion as academic since plaintiff is authorized to proceed under his notice of examination; (5) by striking out the seventh or last decretal paragraph which denies plaintiff’s second cross motion insofar as he sought *824priority of his examination of the defendants; and (6) by substituting therefor a paragraph granting such cross motion to that extent and directing that plaintiff shall begin and complete his examination of the defendants before they shall be permitted to examine him. As so modified, the said order of July 14, 1960, insofar as appealed from, is affirmed, with $10 costs and disbursements to plaintiff. Order, dated September 14, 1960, modified as follows: (1) by striking out from the second decretal paragraph the provision directing plaintiff to appear for examination on a specified date and hour; (2) by. substituting therefor a provision directing plaintiff to appear for such examination either on 10 days’ notice given to him by defendants after the completion of his examination before trial of them, or on any other date mutually fixed by the parties after the completion of plaintiff’s examination of the defendants; (3) by adding to the fifth decretal paragraph, which presently modifies the defendants’ demand for a bill of particulars to the extent of striking out portions of certain items in such demand, a provision further modifying such demand by striking therefrom the last sentence of Item 2 and the last sentence of Item 3 (e); (4) by striking out from the seventh or last decretal paragraph the provision specifying the time within which plaintiff shall serve his verified bill of particulars in response to defendants’ demand as modified; and (5) by substituting therefor a provision directing that, in response to defendants’ demand as modified, plaintiff shall serve his verified bill of particulars within 30 days after entry of the order hereon. As so modified, the said order dated September 14, 1960, insofar as appealed from, is affirmed, with $10 costs and disbursements to plaintiff. With respect to a notice of examination before trial served by a plaintiff after his receipt of an answer containing a general denial and affirmative defenses, it is not mandatory that such notice shall be vacated on the grounds: (1) that an order had been previously made granting in part the plaintiff’s motion addressed to portions of the affirmative defenses and granting leave to the defendants to serve an amended answer repleading certain defenses; and (2) that the time to serve the amended answer pursuant to said prior order had not expired when plaintiff’s notice of examination was served (see, e.g., Rules Civ. Prac., rule 121-a; Tollis v. New York, New Haven & Hartford R. R., 282 App. Div. 885; Punia v. Dry Dock Sav. Bank, 280 App. Div. 431). In the absence of a showing of special circumstances, the party first demanding an examination before trial should be the first to proceed (Cudlipp v. Watson, 202 Misc. 832). In our opinion, also, the last sentence of Item 2 and the last sentence of Item 3 (e) of defendants’ demand for a hill of particulars, call for an unnecessary disclosure of evidence. Nolan, P. J., Beldock, Kleinfeld, Pette and Brennan, JJ., concur.

In this action the female plaintiff seeks to recover damages for personal injuries sustained by her while operating a plastic injector machine for her employer, R. C. Molding, Inc.; and her husband seeks to recover damages for medical expenses and loss of her services. Plaintiffs sued only the manufacturer of the machine, defendant De Mattia Machine & Tool Company, Inc. The manufacturer, as third-party plaintiff, has interposed a third-party complaint against the employer as a third-party defendant. After a jury trial, the court at the close of the case dismissed the husband’s cause of action and the third-party complaint; and the jury then returned a verdict of $12,000 in favor of the female plaintiff and against the defendant manufacturer. Thereafter, on May 31, 1960, judgment of the Supreme Court, Nassau County, was entered in favor of the female plaintiff against the manufacturer, and in favor of the employer third-party defendant against the manufacturer, dismissing the latter’s third-party complaint. The manufacturer appeals from the judgment. Judgment, insofar as it is in favor of the female plaintiff and against the manufacturer, defendant De Mattia Machine & Tool Company, Inc., reversed on the facts and, as between the female plaintiff and such defendant, the action is severed and a new trial granted, with costs to abide the event. Judgment, insofar as it is in favor of the employer, the third-party defendant R. C. Molding, Inc., affirmed, with costs to such party payable by the manufacturer, the third-party plaintiff. On April 9, 1958, defendant manufacturer delivered the plastic injector machine to the female plaintiff’s employer. As the operator faced the machine, there was a stationary platen to the right and a movable platen to the left. In front of the two platens was a " safety gate ”, which the operator opened by hand in order to take out the finished products which, in this instance, were plastic eye sockets for dolls’ heads. When tested on April 15 and 16, 1958, it was found that the machine was different from prior models delivered to and used by said female plaintiff’s employer. In the prior models, if the safety gate was opened by the operator before the movable platen reached its furthermost back position, the platen moved back, away from the stationary platen, and stopped, with the result that the operator could safely reach into the machine and remove the finished product. However, on the machine in question, if the safety gate was opened by the operator before the movable platen reached its furthermost back position, the movable platen would go forward and contact the stationary platen before the machine would come to a stop. It was only if the safety gate was opened by the operator when the movable platen reached its furthermost back position, that the movable platen would stop and not go forward. For this reason, as a warning to its operators, the said employer on April 17, 1958, before the machine was put in operation, placed on its safety gate a sign reading: “ Do not open gate until die is in full open position.” The next day, April 18, the female plaintiff operated the machine and, apparently in disregard of the warning sign, opened the safety gate before the movable platen was in its full open position, with the result that this platen moved forward and amputated her thumb when it (the movable platen) contacted the stationary platen. After the accident, defendant manufacturer redesigned the machine so that the movable platen would not move forward even if the safety gate were opened before such platen was in its full open position. This action was brought on the theory that the operator’s (the female plaintiff’s) injuries were caused by a defective microswiteh, which allegedly failed to stop the movable platen from moving forward when the safety gate was opened. Inter alia, the court charged the jury without exception that, if the injured *826plaintiff’s employer warned the employees that the machine could be used only if certain safeguards were adopted, the defendant would not be liable to such plaintiff. Although the complaint and bill of particulars alleged that the machine in question was improperly designed, the case was not submitted to the jury on that theory. As stated, plaintiffs proceeded on the theory that the platen moved forward only because the microswitch which controlled the current was defective. A finding that there was such a defect is against the weight of the evidence. In any event, the third-party complaint by the defendant manufacturer against the female plaintiff’s employer was properly dismissed. Defendant manufacturer could be liable to plaintiffs only on proof that it manufactured a defective machine, which would constitute it an active wrongdoer, thus precluding recovery over against the employer. Besides, there was no proof of negligence on the part of the employer in installing or adjusting the machine. Nolan, P. J., Beldoek, Ughetta, Christ and Pette, JJ., concur.

Order, Supreme Court, Bronx County (Barry Salman, J.), entered December 22, 2005, which granted the motion by defendant Konan and the cross motion by defendants Gomez and Americana for summary judgment dismissing the complaint as against them, unanimously modified, on the law, the cross motion denied and the complaint reinstated as against Gomez and Americana, and otherwise affirmed, without costs. Inasmuch as plaintiff testified that the Gomez vehicle, in which she was a passenger, first struck the car driven by Konan before it was struck in the rear by the car driven by defendant Sebastien, there are contradictory versions as to how the accident occurred, thus precluding summary disposition (see DeRosa v Valentino, 14 AD3d 448 [2005]). On the other hand, even under plaintiffs version (which is not supported by either Konan or Gomez) that the Konan vehicle struck a fourth car that had swerved in front of it, there is no evidence suggesting that Konan had been driving so fast that he would have been unable to respond to the exigent circumstances in a non-negligent manner. Although Gomez admitted striking the Konan *320vehicle, he did not testify that Konan swerved into his lane. Under such circumstances, the complaint against Konan was properly dismissed, since there is nothing in the record to support an allegation that he was negligent. Concur—Saxe, J.P., Sullivan, Nardelli, Gonzalez and Kavanagh, JJ.

Motion by appellant to be released from custody and to stay enforcement of an order made December 23, 1960, by the Domestic Relations Court of the City of New York, Family Division, County of Queens, pending appeal from such order. Motion granted upon the following conditions: (a) that appellant shall deposit with the Clerk of said court the sum of $250, to be held and applied pursuant to statute (N. Y. City Dom. Rel. Ct. Act, § 58); (b) that during the pendency of this appeaj, appellant shall pay weekly the amount heretofore directed to be paid by said court for the support of the petitioner and their children; and (c) that the appeal be perfected and argued or submitted at the March Term of this court, commencing February 27, 1961. The appeal is ordered on the calendar for said term. It will be heard on the original papers and on typewritten briefs. Appellant is directed, on or before February 14, 1961, to file six copies of his typewritten brief and to serve one such copy on petitioner’s attorney, on the Corporation Counsel of the City of New York and on the Presiding Justice of the Domestic Relations Court. Nolan, P. J., Beldock, Ughetta, Kleinfeld and Pette, JJ., concur.

Order, Supreme Court, Bronx County (George D. Salerno, J.), entered June 3, 2005, which denied the petition to file a late notice of claim, unanimously affirmed, without costs. Petitioner concedes that she failed to proffer a reasonable excuse for her delay and that her accident was not reported until she made her motion, some 14 months after her claim *321arose. Her argument that respondent’s records of maintenance and snow and ice removal can provide actual notice of the essential facts underlying her claim is improperly raised for the first time on appeal (see e.g. Miles v City of New York, 173 AD2d 298, 300 [1991]). Were we to consider it, we would reject it inasmuch as the maintenance and snow and ice removal records would not have given respondent notice that petitioner had allegedly tripped, fallen and broken her leg. Even if the claim arose out of a transitory condition, that does not preclude a finding that respondent was prejudiced by petitioner’s delay in asserting the claim (see Harris v City of New York, 297 AD2d 473, 474 [2002], lv denied 99 NY2d 503 [2002]). In Zarrello v City of New York (61 NY2d 628 [1983]), where the plaintiff had delayed for one year and 87 days, the Court of Appeals upheld a finding of prejudice for a claim “predicated on the defective state of the sidewalk and the accumulation of ice and snow” (id. at 630). The mere existence of records does not “eliminate the inference that prejudice would accompany the passage of time” (Matter of Vargas v New York City Hous. Auth., 232 AD2d 263 [1996], lv denied 89 NY2d 817 [1997]). In any event, lack of prejudice, alone, is not determinative (see Bullard v City of New York, 118 AD2d 447, 452 [1986, Kassal, J., concurring]; see also Matter of Morris v County of Suffolk, 88 AD2d 956, 957 [1982], affd 58 NY2d 767 [1982]). We have considered petitioner’s remaining arguments and find them without merit. Concur—Saxe, J.P., Sullivan, Nardelli, Gonzalez and Kavanagh, JJ.

Appeal by the employer Alsco Distributors, Inc., and its carrier from a decision of the Workmen’s Compensation Board charging them with the entire award. The claimant sustained an injury to his back while working for the respondent employer in 1944. This resulted in a spinal fusion being performed by Dr. Sullivan and in 1949 that compensation ease was closed with a lump sum settlement. In 1956 while working for the appellant employer the claimant slipped and fell on his buttocks. Further surgery was performed in 1957 by Dr. Sullivan during which he removed certain scar tissue and some bony overgrowth which had resulted from the earlier spinal fusion. After this second accident the claimant was totally disabled. The only physician to testify was Dr. Sullivan who stated that both accidents played a part in the resulting disability and that both operations, the one in 1945 and the one in 1957, resulted from the first accident. He found no new condition after the second accident which he could attribute to that accident. The Referee attributed the disability to both accidents and charged half the award to each carrier. On review the board modified by finding disability subsequent to the second accident due solely to the second accident, that there was no change in condition under subdivision 5-b of section 15 of the Workmen’s Compensation Law and charged the entire award to the appellant carrier who covered the second accident. Under subdivision 5-b of section 15 when a claim is closed with a lump sum payment it can only be reopened if *828“ there has been a change in condition or in the degree of disability of claimant not found in the medical evidence and, therefore, not contemplated at the time of the adjustment ”. There is no evidence in this record to sustain the board’s finding that all the disability after the second accident was attributable thereto. The evidence indicates rather that the resulting total disability was due to both accidents and that the second injury was an aggravation of a pre-existing condition. The respondent cites Matter of Shafaransky v. Cosmos Footwear Corp. (277 App. Div. 803) where claimant sustained two injuries to his back and this court upheld the hoard’s refusal to reopen the first compensation case which was closed with a lump sum settlement. In that ease there was medical proof showing the injuries to be distinct and independent and such proof is lacking here. The only evidence here indicates that the change in condition was attributable to both accidents. The ease should be remitted to the board at which time it can consider the question of the liability of the Special Fund and take any further medical evidence which might be produced. Decision unanimously reversed and case remitted to the Workmen’s Compensation Board, with costs to appellants. Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ., concur.

Order, Family Court, New York County (George L. Jurow, J.), entered on or about February 8, 2006, which granted petitioner mother visitation during all school vacations, unanimously modified, on the law, the facts and in the exercise of discretion, the matter remanded for a custody hearing, and otherwise affirmed, without costs. Liberally construing the allegations of the pro se petition, we find that they set forth sufficient facts which, if established at an evidentiary hearing, could afford a basis for the relief sought, viz., a change in custody (see Matter of Williams v Mullineaux, 271 AD2d 869 [2000]). For example, the petition alleged that respondent father was preventing the parties’ child from seeing petitioner (see e.g. Vernon v Vernon, 296 AD2d 186, 192 [2002], affd 100 NY2d 960 [2003]; Matter of Michael C., 282 AD2d 407 [2001], lv denied 96 NY2d 722 [2001]). In addition, during the course of the proceedings, petitioner discovered that respondent had moved to Troy (three hours away) without advance notice, taking the child with him (see Matter of Hanson v Hanson, 283 AD2d 677, 678 [2001]; Matter of Markey v Bederian, 274 AD2d 816, 817 [2000]). We note finally that respondent has not appeared in opposition to this appeal (see Matter of Martin R.G. v Ofelia G.O., 24 AD3d 305 [2005]; Matter of Clifford M., 280 AD2d 366 [2001]). Concur—Saxe, J.P., Sullivan, Nardelli, Gonzalez and Kavanagh, JJ.

Appeal from a decision of the Workmen’s Compensation Board. In 1942 while claimant was working a machine in a brass plant a metal splice bar from the machine flew up striking him in the throat. Following the accident he underwent personality changes and a neurosis which an impartial specialist attributed to the accident. Awards based upon a finding of traumatic neurosis were made for resulting partial disability for various periods until 1948. In 1952 he was admitted to a State hospital upon diagnosis of psychosis (paranoia) and he still remains there under medical treatment. The board has disallowed the claim based on the attribution of the psychotic illness to the accident 16 years before and claimant appeals. There is in the record substantial medical evidence upon which to disallow the claim. A psychiatrist testified that in his opinion the psychosis was not caused by or related to the 1942 accident. The same impartial specialist who had advised the board there had been some association between the neurosis and the accident testified he could not express an opinion as to relation of the psychosis to the accident, although as to its causation he was of opinion there was no association, i.e., a paranoid condition “ cannot be caused by injury ”. There was reliable medical opinion favoring claimant’s contention; but on this factual issue the board’s findings are binding on us. Decision unanimously affirmed, without costs. Present — Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.

Order and judgment (one paper), Supreme Court, New York County (Richard F. Braun, J.), entered December 23, 2005, *322which granted petitioner’s application to vacate an arbitration award and directed that any rehearing be conducted before a three-member arbitration panel, unanimously reversed, on the law, without costs, the award confirmed and the petition dismissed. Charges and specifications were preferred by respondent Department of Education (DOE) against petitioner, a tenured high school teacher, for excessive absences and lateness, inappropriate behavior and unsatisfactory teaching evaluations (Education Law § 3020-a). On October 17, 2002, petitioner was served with notice of the charges and the maximum penalty (dismissal) and apprised of the requirement to request a hearing within 10 days. Enclosed with the notices were copies of Education Law §§ 3020, 3020-a and 2590-j, State Education Department Commissioner’s Regulations (8 NYCRR) subpart 82-1, and Appendix C of the collective bargaining agreement between the DOE and the United Federation of Teachers (UFT). Education Law § 3020-a (2) (c) provides that a tenured teacher in receipt of notice of charges involving pedagogical incompetence must, within 10 days, submit written notice that a hearing on the charges is sought and indicate whether a single arbitrator or a panel of three arbitrators is desired. On October 18, petitioner requested a hearing by submitting form 3020-a-2, a document that does not address the preference as to the composition of the panel. It was not until October 30 that petitioner sent a letter to the Commissioner of Education requesting that the matter be heard by a panel of three arbitrators and stating that she would represent herself in the proceedings. In early November, the arbitrator notified petitioner that he was the Hearing Officer appointed to hear the charges against her and that a prehearing conference was scheduled for November 15. In response, petitioner protested that she had been provided with an illegible copy of Education Law §§ 3020 and 3020-a and would be unable to adhere to the proposed schedule. The arbitrator rescheduled the prehearing conference to December 2 to afford petitioner time to consult with counsel, a step he recommended, with the hearing to follow immediately. He further warned petitioner that additional postponements would not be approved without “proof of the most compelling circumstances,” and that failure to appear would result in the proceedings being conducted in her absence. Petitioner responded with another request for a three-member arbitration panel, stating that she had only received a legible copy of the pertinent Education Law provisions on November 19 and that her present request was timely as measured from that date. She *323was promptly reminded that the arbitrator was the designated Hearing Officer and that the proceedings would be conducted as scheduled. On November 30, 2002, petitioner composed a letter stating that she would not be able to attend the December 2 prehearing conference because the attorney provided by the UFT to represent her in a federal action against the Board of Education would be filing a motion in Eastern District Court for a temporary restraining order staying arbitration. However, on the appointed date, petitioner appeared at the conference, without counsel, and informed the arbitrator that she was present solely for the purpose of delivering the letter and not to attend the scheduled hearing. Her presence and purpose were noted on the record, and the arbitration hearing proceeded in her absence on December 2 and 3. The record does not disclose the results of the purported application for injunctive relief made in District Court. The arbitrator issued a 35-page decision sustaining virtually all charges preferred against petitioner. Shortly thereafter, her employment was terminated by respondent, effective immediately. This proceeding to vacate the award followed. Petitioner claimed that the arbitrator failed to follow the procedure of CPLR article 75 and engaged in misconduct. Specifically, she noted that the minutes fail to reflect that the arbitrator was ever sworn (CPLR 7506 [a]), that she was deprived of her right to a hearing before a panel of three arbitrators and that the arbitrator failed to adjourn the proceedings to provide her with sufficient time to confer with counsel and to review evidentiary materials. Respondent answered, in substance, that petitioner’s request for a three-member arbitration panel was untimely and that no oath is required by an arbitrator under Education Law § 3020. Further, respondent argued that even if an oath were required, it was waived by the failure to interpose any objection to the manner in which the proceedings were conducted. Supreme Court vacated the award, agreeing with petitioner that her request for a three-member arbitration panel was made within 10 days of her receipt of legible copies of the pertinent sections of the Education Law. The court also held that the arbitrator was not properly sworn in accordance with CPLR 7506 (a) and that petitioner had not waived the requirement. We disagree. CPLR 7506 (c) provides, “Notwithstanding the failure of a party duly notified to appear, the arbitrator may hear and determine the controversy upon the evidence produced.” There *324is no question that petitioner received adequate notice of the proceedings and actually appeared on the hearing date. The only question of arbitral misconduct (CPLR 7511 [b] [1] [i]) concerns the denial of an adjournment (CPLR 7506 [b]), a matter that lies in the sound exercise of the arbitrator’s discretion, which will only be disturbed if abused (Matter of Bevona [Superior Maintenance Co.], 204 AD2d 136, 139 [1994]). Petitioner was duly advised that the matter would be heard as scheduled and warned that adjournment would require compelling circumstances. The six weeks between the time petitioner received notice of the charges against her and the date proceedings commenced afforded ample time to prepare for the hearing and consult counsel. Thus, adjournment was appropriately denied (see Matter of Herskovitz [Kaye Assoc.], 170 AD2d 272, 274-275 [1991], lv dismissed 78 NY2d 899 [1991]). As to the composition of the panel, the requirement to file a request for a three-member arbitration panel within 10 days is set forth in Education Law § 3020-a (2) (c) and in Commissioner’s Regulations § 82-1.4. In the copy of each document initially served upon petitioner, the pertinent provision is plainly legible. Thus, her request was untimely, and the matter was properly heard by a single arbitrator. Petitioner’s assertion that the Hearing Officer was not sworn in accordance with CPLR 7506 (a) is disputed by respondent. In any event, this Court has ruled that the failure of an arbitrator to take an oath is “a technical irregularity not warranting judicial intervention” (Matter of Institute of Intl. Educ. [Permanent Mission of Spain to United Nations], 118 AD2d 433, 435 [1986], lv denied 68 NY2d 608 [1986]). Unjustified refusal to participate in an arbitration hearing does not afford a basis for attack upon an award rendered on default (CPLR 7506 [c]) and may not be utilized to frustrate this State’s “strong public policy of encouraging, by judicial noninterference, an unfettered, voluntary arbitration system, where equity should be done” (Matter of Neirs-Folkes, Inc. [Drake Ins. Co. of N.Y.], 75 AD2d 787, 788 [1980], affd on other grounds 53 NY2d 1038 [1981]). Petitioner’s request of September 27, 2006 to further address matters raised on oral argument is denied. Concur—Tom, J.P., Saxe, Friedman, Sullivan and McGuire, JJ.

The employer and carrier appeal from an award of disability compensation. The only issue is that of employer-employee relationship. Appellants contend that claimant is an independent contractor. Claimant had been a paper hanger for 40 years. He was a member of a union in New Jersey, and in earlier days had been assigned by the union to do work for contractors as a *829paper hanger. He had never maintained a place of business of his own. The employer owned a bungalow colony and wanted two rooms and a bathroom papered. One of the principals of the employer lived in the same building with claimant and knew claimant was a paper hanger. He asked claimant to “ do a couple of days work for him”. Claimant supplied his own brush and scissors, and the employer supplied the paper, the paste and a ladder. Claimant’s compensation was to be $1.25 per roll of paper, which was the customary practice in the area for paper hangers. While doing the work the ladder slipped and claimant sustained the injuries for which the award was made. The employer’s representative took claimant from his home to the job and brought him back at the end of eight hours work. Even if different inferences could be drawn from these facts it was well within the province of the board to determine that claimant was an employee. Award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.

Appeal by an alleged employer and his insurance carrier from a decision and award of the Workmen’s Compensation Board, appellants contending that claimant was an independent contractor. The board found upon substantial evidence that claimant, a carpenter, had worked for the employer, a building contractor, off and on for three years, being paid $18 per day; that he had been so employed for two or three days repairing arches and floors when the employer requested him to install a cabinet in the same building and took him to the factory to get a cabinet, found the factory closed and told claimant to return and get the cabinet later; that claimant said the cabinet was too heavy for him to handle alone and the employer told him to get a helper and that he would pay for the cabinet and the helper; that claimant arranged for one Chaprack to help and figured the cost at $115 which included $54 for labor of the two men for one and one-half days at $18. Claimant was hurt before the work was done and the employer issued a check to claimant and Chaprack for $112,40, the difference of $2.60 being for lumber supplied by the employer, and, claimant being disabled, Chaprack paid for the cabinet and he and claimant retained the balance. Upon the entire record, the board was not bound to find that the parties contemplated the termination of the prior employment status and the creation of an independent contractual arrangement. The latter was not conclusively established by either the advance computation or method of payment of the labor cost, although another trier of the facts might have given greater effect to each. Appellants’ argument is in some considerable part predicated on the alleged employer’s testimony. The board was, of course, entitled to reject this evidence but, further and under the circumstances surrounding the witness’ failure to produce certain records, to indulge an affirmative inference supportive of the claim. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present—Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.

Appeal from an award in a heart case. The claimant, while working as a secretary on June 6, 1958, pulled open the top drawer of a filing cabinet and in so doing it tipped over, striking her on the chest. There was testimony that the drawer itself was heavy and that the filing cabinet weighed approximately two hundred pounds. It was necessary for her to heave and push the drawer and cabinet to get it back in place. She testified that at the time of the incident she immediately felt a slight pain. One of her coemployees testified to the happening of the accident and that the claimant complained of pain and that her face was “ red as a lobster ”. The claimant testified that thereafter during the afternoon and evening on several occasions she felt additional pain and upon her arrival home in the evening she suffered severe and terrific pain. She consulted a doctor on June 9 who, after making an examination, ordered her to the hospital where she remained for approximately eight weeks. The doctor found that she was suffering from myocardial infarction due to coronary insufficiency. This doctor stated that he did not know whether the injury was of sufficient force to result in the cardiac condition but said that injuries to the chest wall and sudden exertions have precipitated myocardial injury and would not deny such possibility. In December the claimant was attended by a Dr. Strieker who stated as follows: “ Q. Doctor, did you feel that the condition which you found was the result of the history which we described to you, of exertion, and so forth? A. I did feel this was a competent cause of her injury. Q. You thought that was related? A. Yes this is the reason why I filed this form.” She further stated that she felt the episode in connection with the filing cabinet was the cause of the coronary insufficiency. Another doctor testified that in his opinion he did not think the blow to the chest was sufficient to cause ,a coronary condition and that the coronary did not occur until later in the day and after she had finished her employment and was in no way associated with the contusions to the chest. The board found that the pushing of the drawer with the immediate pain was sufficient strain and exertion to have caused the coronary condition and we think the evidence justifies such findings. There was testimony that the drawer itself weighed approximately 70 or 80 pounds, that it fell directly on the chest of the claimant, that it required considerable effort and exertion on her part to push it back and that it was an unusual effort on her part. The medical testimony, while disputed, is sufficient to support such a finding. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.

Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered January 3, 2006, which, after a nonjury trial, dismissed the Condominium defendants’ cross claim seeking eviction of defendant tenant Rebecca Rosenbaum on the ground that she had created a nuisance in her apartment, unanimously reversed, on the facts, without costs, and judgment awarded on the cross claim. Order, same court and Justice, entered May 4, 2006, which, to the extent appealed from, granted Rosenbaum’s motion for attorneys’ fees and denied the Condominium’s motion to modify the prior order, unanimously modified, on the law, so as to deny Rosenbaum’s motion for attorneys’ fees, and otherwise affirmed, without costs. The Clerk is directed to enter judgment of eviction in favor of defendant Haroldon Court Condominium and against defendant Rebecca Rosenbaum accordingly. The trial court’s finding that Rosenbaum did not create a nuisance warranting her eviction appears to have been based upon an unreasonable and unsupportable finding that the odors complained of were only occasional and of the type that are unavoidable in close city quarters, an “ ‘inescapable reality of urban life’ ” (quoting Stiglianese v Vallone, 168 Misc 2d 446, 452 [1995], revd 174 Misc 2d 312 [1997], revd 255 AD2d 167 [1998]). To the contrary, all the credible testimony regarding the odors that emanated from Rosenbaum’s apartment indicated that they were not of the unavoidable variety, but of a type caused by matter that should not be kept in an apartment, such as rotting food. The testimony of Rosenbaum’s witnesses, who denied the presence of any such odors, was refuted by the disinterested testimony of two firefighters regarding their unannounced visit to the apartment just one month before trial. Their testimony corroborated plaintiffs’ claims of ongoing noxious odors by confirming that on that visit the apartment emanated shockingly foul odors. That the stench may have dissipated somewhat once the apartment door was closed is of *326little consequence; bad odors, while much worse at the source, generally continue to permeate, even if in a somewhat less extreme form, the vicinity around their source, remaining noticeable in varying degrees to those in the vicinity. To reject plaintiffs’ claims of recurring odor problems as it did, the trial court had to implicitly conclude that the stench noticed by the firefighters coincidentally happened to be present on the day of their visit and was a rare event. Such a conclusion strains credulity. Indeed, the court’s rejection of the nuisance claim in effect imposed on plaintiffs and the Condominium defendants a burden beyond that imposed by law, and impossible to satisfy, of proving only through neutral witnesses the constant or ongoing occurrence of objectionable conduct. We find that the credible testimony clearly establishes the claimed ongoing, recurring presence of an unacceptable level of odor constituting a nuisance and warranting eviction (see Domen Holding Co. v Aranovich, 1 NY3d 117, 123-124 [2003]). Further support for the finding of nuisance is provided by the testimony of Lieutenant Meehan as to what he termed a “Collyer Mansion”-like condition in the apartment, meaning that the apartment was dangerously cluttered with furnishings, boxes and debris. Although the trial court simply directed Rosenbaum to cure the condition, it is significant that in previous litigation years earlier, the court had taken extraordinary measures in an effort to assist Rosenbaum in curing the same condition so as to avoid eviction. Evidently, the problem has not been solved, and cannot be solved with a directive such as the trial court included in its order. Moreover, although plaintiffs and the Condominium defendants were unable, without Rosenbaum’s cooperation, to clearly establish by direct evidence the cause or source of the many water leaks into the apartment below Rosenbaum’s, the testimony regarding prior incidents and observations indicates that over the years Rosenbaum had created or allowed flooding conditions to occur in her own apartment. While this alone would not be enough for a finding of nuisance, in conjunction with the other evidence it does support that finding. So, too, does the testimony regarding the cockroach infestation in Rosenbaum’s apartment and the trash she put out, even if it did not actually create a building-wide infestation. The sought eviction therefore should have been granted. The award of attorney fees to Rosenbaum must be rejected in view of the foregoing. Plaintiffs’ claim for an abatement of their monthly carrying charges was properly sustained and transferred to Civil Court. *327The Condominium’s posttrial cross motion for rent arrears from Rosenbaum was properly denied without prejudice to commencement of an appropriate proceeding in Housing Court, since that issue was not fully raised and litigated at the trial. The provisions of the Condominium declaration relied upon by the Condominium, and the pleadings of the Condominium defendants, do not support its claim for indemnification or contribution against plaintiffs in the present circumstances. Concur—Saxe, J.E, Sullivan, Williams, Sweeny and Malone, JJ.

The employer and carrier appeal from an award of death benefits. The Workmen’s Compensation Board has found that decedent’s death was accidental. Appellants contend that it was a case of suicide. Decedent was last seen alive on July 24, 1957, in the men’s washroom of the employer’s premises on the 27th floor of a building at some time between 2:30 p.m. and 3:15 p.m. Shortly thereafter his badly mangled body was found in the courtyard of the building. There was a large window in the washroom which concededly was open and usually kept open. There was a sink very close to the window. The bottom sill of the window was 2 feet above the floor. A radiator in front of the window was 1 foot 8 inches high. Decedent’s body was found approximately 39% feet from the vertical plane of the washroom window. The window was 344% feet above street level. On the 25th floor of the building there was a ledge which projected outward 1 foot 10 inches, and on the 24th floor a ledge projecting 4 feet 3 inches. There is evidence that decedent had been hospitalized in June, 1956, and remained away from work until September, 1956, and that he worried about his health. There is evidence that he had dizzy spells and shortness of breath; that he was happily married, had two children, owned his own home free and clear and had no financial worries. He had returned from vacation the day before his death and appeared happy and rested. The case was thoroughly tried on both sides and the evidence is too extensive to discuss in detail. Appellants lean heavily upon the testimony of an expert to the effect that if the body “ fell ” from the window, without the propulsion of a jump, it would not have landed 39% feet from the building. This evidence was disputed and was based upon the assumption that the body did not carom off a ledge. The board has found that the presumption against suicide under section 21 of the Workmen’s Compensation Law has not been overcome by substantial evidence. All of the evidence tending to overcome the presumption is disputed, and it is for the board to weigh conflicting evidence. Viewing the record as a whole we may not say, as a matter of law, that the presumption was overcome by “ substantial evidence to the contrary ” (Matter of Graham, v. Nassau & Suffolk Lighting Co., 308 N. Y. 140; Matter of Ackerman v. Dairymen’s League Co-op. Assn., 10 A D 2d 112, motion for leave to appeal denied 8 N Y 2d 706.) Award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Bergan P. J Coon Gibson, Herlihy and Reynolds, JJ. ’’

Judgment, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered in these consolidated actions October 6, 2005, awarding plaintiff Herman $180,000 on his individual claims and BBR WorldWide Transmission Parts Distributors, Inc. $180,000 on the derivative shareholder’s claims, unanimously affirmed, without costs. Appeal from order, same court and J.H.O., entered June 8, 2005, granting the above relief after a nonjury trial, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. Plaintiff, a one-quarter shareholder in a subchapter S corporation, sued individually, alleging breach of a shareholders agreement, and derivatively on behalf of the corporation, alleging breach of fiduciary duty. Plaintiff had loaned $150,000 to the corporation and invested $30,000 for his 25% interest in defendants’ transmission parts corporation in August 1993. He soon became concerned about the financial status of the corporation, including the fact that defendant Feinsmith was being paid a salary without proper documentation. The individual defendants then “reclassified” Feinsmith’s salary payments as repayment of a loan over plaintiffs objection and in violation of the pari passu provision of the shareholders agreement, which required proportional repayment of all shareholder loans. Thereafter, plaintiff no longer received any notices of upcoming board meetings and was effectively shut out from the management of the corporation. Despite plaintiff’s request to review the *328company’s books and records, which was refused, and a subsequent court order directing such disclosure, the other shareholders balked at compliance. Instead, in March 1994 they shut down the corporation and ceased doing business without informing plaintiff, again in violation of the shareholders agreement. Only after commencing the instant individual and derivative actions did plaintiff learn that the corporation’s assets had been sold off and its inventory disposed of or abandoned, all without his knowledge or consent. Significant leeway is granted to a court in making a fair approximation of the loss occasioned by a breach of fiduciary duty (see Oshrin v Hirsch, 6 AD3d 352, 353-354 [2004]). The trial court’s findings of breach of fiduciary duty and breach of the shareholders agreement are based on a fair interpretation of the evidence. The award to the corporation on plaintiffs derivative action is not a “double recovery” because “the claims belong to the corporation, and damages are awarded to the corporation rather than directly to the derivative plaintiff’ (Wolf v Rand, 258 AD2d 401, 403 [1999]). This is so even though plaintiff is not only á shareholder entitled to seek derivative relief on behalf of the corporation, but also a shareholder and creditor entitled respectively to individual relief for defendants’ breach of fiduciary duty to fellow shareholders and their breach of the separate shareholders agreement. We have considered defendants’ remaining contentions and find them without merit. Concur—Andrias, J.R, Saxe, Marlow, Nardelli and Williams, JJ.

Appeal by employer and carrier from an award of disability compensation. Appellants’ only contention is that there is no substantial evidence that claimant’s disability is causally related to his alleged accident. Claimant was working as a laborer in the employer’s shipyard. On April 26, 1957, while he was assisting in moving a yacht down to the shore line, the steel cable that was used in pulling the boat slipped, and as claimant jumped to avoid being struck by the cable and moved his hips sideways, he felt a sharp pain in his back. On April 30, 1957, claimant saw a doctor who strapped his back. His condition did not improve and on May 8, 1957 he entered a hospital where a tentative diagnosis of herniated disk was made, and eventually claimant was operated for what was found to be a herniated disk. Because of conflicting histories appellants claim that the real cause of claimant’s condition is a lifting episode on another occasion. We think the record presents an open question of fact with adequate evidence to support the finding of the board. Award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.

Appeal by an employer and its insurance carrier from a decision and award of the Workmen’s Compensation Board for reduced earnings found to have resulted from disability due to back and head injuries which permitted claimant to perform the lighter duties of her job as an apartment house superintendent but prevented her from doing heavy work such as handling garbage and cleaning the premises, for which she hired a substitute at $12.50 per week, meanwhile continuing to receive from her employer her full cash wages of $15 per month plus rent free apartment and utilities; the board computing her total compensation as $13.85 per week (actually $16.15 apparently) and finding that since she had to expend $12.50 per week for her substitute “she suffered an actual loss of earnings of $12.50 weekly and is therefore entitled to 66%% of $12.50, but not less than $12 per week during the period in question”.- We find no tenable basis for appellants’ attack upon the credibility of the testimony as to the hiring of the substitute and his performance of the heavy work, adduced from claimant, the substitute and the employer’s managing agent. Neither do we perceive any merit in appellants’ denial of any “ decreased earnings or earning capacity” (Workmen’s Compensation Law, § 15, subd. 6) on the ground that the employer continued to pay claimant’s wages and to supply the apartment and the utilities service. That the result is no different than it would have been if the employer had paid the substitute and reduced claimant’s compensation accordingly is too obvious to require discussion. The procedure is apparently not unusual in cases such as this, the purpose doubtless being to preserve the established home pending recovery, and awards for reduced earnings have been sustained in the past. (Cf. Matter of Syvertson v. Freudenberg, 7 A D 2d 796; Matter of Staniszewski v. Falls Nat. Bank, 239 App. Div. 871, 242 App. Div. 745.) Appellants’ contention that on cross-examination of claimant’s physician they were prevented from developing proof as to whether or not a prior operation contributed to the disability in issue here seems plainly groundless. In the first place, it is not at all clear that they were so prevented. In any event, counsel did not indicate any purpose such as he now contends for but stated that the carrier had “ never questioned the prior operation as being causally related or not causally related”; and there was no intimation in appellants’ medical proof of the possibility of any relationship. Finally, the physician questioned specifically denied any relationship. A similar objection that appellants were prevented *832from cross-examining claimant as to her employment of the same substitute, following the surgery not shown to be related and prior to the accident, is likewise without merit. ■ Both claimant and the substitute worker testified to the latter’s doing claimant’s work at that time and even now appellants do not indicate the purpose of further cross-examination. Finally, appellants attack as contradictory and inconsistent the medical proof of causal relation during the period of the award appealed from, but we find that such proof constituted substantial evidence which the board was entitled to accept. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present—■ Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.

The petitioners in the above-entitled eases appeal from orders denying their applications for orders compelling respondents to allow them to confer privately with Frances Kahn, an attorney. It appears that while attorney Kahn was allowed to consult with the petitioners in Clinton Prison, she was not allowed to converse privately as a guard was stationed within hearing distance during the consultations. There are identical issues in all three appeals. The Warden of a State prison is responsible for the supervision and management of the prison and its inmates subject only to the control of the Commissioner of Correction (Correction Law, §§ 18,112). Section 146 of the Correction Law which reads as follows specifically covers visitations: “ The following persons shall be authorized to visit at pleasure all state prisons: The governor and lieutenant-governor, superintendent of standards and purchase, secretary of state, comptroller and attorney-general, members of the commission of correction, members of the legislature, judges of the court of appeals, supreme court and county judges, district attorneys and every minister of the gospel having charge of a congregation in the town wherein any such prison is situated. No other person not otherwise authorized by law shall be permitted to enter a state prison except under such regulations as the commissioner of correction shall prescribe. The provisions of this section shall not apply to such portion of a prison in which prisoners under sentence of death are confined.” There is no doubt that the Warden and the Commissioner are given broad powers and necessarily so. Equally important, however, is a prisoner’s right to counsel and to due process of the law. In passing upon these appeals it is necessary to examine the facts. Petitioner Kahn on August 11, 1959 wrote the Warden of Clinton Prison that she wished to interview 34 inmates in a space of a day and a half. There is no statement in the letter that she was under retainer. There is no statement of the purpose of her consultation. When she arrived at the prison she showed no retainer agreement. No proper foundation was laid by petitioner Kahn for her later demand for a private interview. Certainly in a maximum security prison such as Clinton Prison, under these facts, the Warden was fully justified in requiring that these interviews be conducted subject to the presence of a guard in the room where petitioners met in order to insure against any impropriety or infractions of prison rules and regulations. Indeed, the request was so unreasonable, we would normally expect a refusal from the Warden instead of a gracious attempt to comply. We are quite sure that upon a reasonable request for interviews at reasonable intervals, upon a proper showing of a retainer, a private interview would be arranged by the Warden, even in connection with a post conviction proceeding. While we are not reaching or deciding herein the question of *833whether in a proper case the court would order a Warden to allow a private interview in a post conviction remedy case such as coram nobis, it would seem that the same justifications for a private interview exist (although there appears to be no authority for same) as in those eases where the petitioner is an accused, and is facing a trial. (See People v. Cooper, 307 N. Y. 253; People v. McLaughlin, 291 N. Y. 480; Matter of Fusco v. Moses, 304 N. Y. 424.) Orders unanimously affirmed, without costs. Present— Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.

Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered July 31, 2006, which granted defendant’s motion to dismiss the complaint, unanimously modified, on the law, the second, third and fourth causes of action reinstated, and otherwise affirmed, without costs. Defendant is a commercial tenant in plaintiffs building pursuant to a lease and amended lease entered into with plaintiffs predecessors in interest. In September 1999, plaintiffs predecessor and defendant entered into the first amended lease, which was, according to plaintiff, intended to (1) immediately add the 17th floor to defendant’s lease and increase the rent to $251,280; (2) move defendant from its original space to the 16th floor on January 1, 2000, making the demised premises the entire 16th and 17th floors; (3) extend the lease term for 10 years and three months from the date defendant received delivery of the 16th floor, assuming the landlord was able to do so; and (4) increase defendant’s annual rent to $265,240 for the final five years, three months of the new lease term. Plaintiffs predecessor delivered the 17th floor to defendant immediately upon execution of the amended lease and delivered the 16th floor to defendant on or about January 1, 2000. Defendant began paying the increased rent of $251,280 on or about that date but refused to pay the increase to $265,240 in January 2005. Defendant relies on paragraph 4 (B) of the amended lease, which provides, in pertinent part, that rent of $265,240 becomes due “From the fifth (5th) anniversary of the Rent Adjustment Date,” which is defined in the same paragraph as the fifth anniversary of the Substitution Space Adjustment Date (i.e., the date the 16th floor was delivered, January 1, 2000). Defendant thus argues that the increased rent is not yet due. *330Plaintiff notes that paragraph 4 (A) (ii) of the lease required the increase rent to be paid “From the Rent Adjustment Date” and that the inclusion of the words “the fifth (5th) anniversary of the” Rent Adjustment Date was a scrivener’s error. When defendant continued to pay only the lower amount of rent, plaintiff commenced this action in March 2006, seeking (1) a declaratory judgment that defendant is obligated to pay rent at the rate of $265,240 per annum, from January 1, 2005 to the end of the lease term “by reason of the scrivener’s error and/or mutual mistake of the parties”; (2) reformation of paragraph 4 (B) because of the scrivener’s error; (3) money damages for the difference between the amount of rent paid and the amount owed; (4) attorneys’ fees. Defendant moved to dismiss on the ground that the action was barred by the statute of limitations (CPLR 213 [6]), which was granted because all of plaintiff’s causes of action are “intrinsically intertwined to the same alleged ‘scrivener’s error’ ” and were barred by the six-year statute of limitations. Plaintiffs first cause of action, while claiming to seek declaratory judgment as to the proper amount of rent for the period commencing January 1, 2005, essentially seeks reformation of the lease based upon mistake. The statute of limitations on a claim of reformation based upon mistake is six years, accruing on the date of the mistake (CPLR 213 [6]; see National Amusements v South Bronx Dev. Corp., 253 AD2d 358 [1998]). This rule also applies to scrivener’s errors (Matter of Wallace v 600 Partners Co., 86 NY2d 543, 547 [1995]). Although plaintiff argues that a two-year date of discovery accrual should apply here, we find that argument unpersuasive inasmuch as plaintiff presumably had the document containing the mistake in its possession and thus could not demonstrate the due diligence required pursuant to CPLR 203 (g) to toll the statute of limitations (Federal Deposit Ins. Corp. v Five Star Mgt., 258 AD2d 15, 20 [1999]). The first cause of action was thus properly dismissed. Plaintiff argues that its causes of action for declaratory judgment concerning the amount of rent owed by defendant, money damages for the difference in the amount of rent paid and the amount owed and counsel fees incurred as a result of defendant’s default in payment sound in breach of contract. Plaintiff essentially contends that since the lease cannot be enforced as written, and that it is ambiguous and irreconcilable, court intervention is required to determine the intention of the parties so as to give meaning to the document. These causes of action would not be barred by the statute of limitations as the alleged breach did not occur until defendant failed to pay the increased rent purportedly due on January 1, 2005. *331In those “limited instances where some absurdity has been identified or the contract would otherwise be unenforceable either in whole or in part,” courts may interpret a document to carry out the intention of the parties “by transposing, rejecting, or supplying words to make the meaning of the contract more clear” (Wallace, 86 NY2d at 547-548). However, “[w]hether or not a contract provision is ambiguous is a question of law to be resolved by a court” (Van Wagner Adv. Corp. v S & M Enters., 67 NY2d 186, 191 [1986]). The agreement here contains irreconcilable ambiguities. If plaintiff did not deliver the space on the 16th floor, then the rent increase would occur five years after the amended lease was executed and defendant received the “Added Space” (the 17th floor) that occurred upon execution of the amended lease. However, if plaintiff did deliver the “Substitution Space” (the 16th floor) along with the 17th floor, which occurred at the time of the execution of the amended lease, then the “Rent Adjustment Date” was five years after the “Substitution Space Adjustment Date,” meaning five years after the delivery of the 16th floor. Therefore, defendant’s rent would increase either five years after receiving the 17th floor, or ten years after receiving the 16th floor while already in possession of the 17th floor. In other words, defendant’s rent would increase faster if it did not receive the new space on the 16th floor than if it did. Additionally, the lease appears not to require any rent at all for the five years from the “Rent Adjustment Date” to the fifth anniversary of that date. Clearly, “by looking within the four corners of the document,” we find a lease with ambiguities that would lead to an absurd result (Matter of Stravinsky, 4 AD3d 75, 81 [2003]). Since plaintiffs remaining causes of action seek to enforce the terms of the lease and sound in breach of contract, the noted ambiguities are sufficient to require court intervention to determine the intent of the parties. The motion should thus have been denied with respect to the second, third and fourth causes of action. Concur—Sullivan, J.P., Williams, Gonzalez, Sweeny and Kavanagh, JJ.

*834The employer and carrier appeal from an award of disability benefits. Appellants’ only contention is that the board erroneously established claimant’s average weekly wage at $50. For one year before the accident claimant worked one day a week as a maid for the employer appellant and received therefor $10 per week. During the same period she worked five days a week as a maid for a beauty shop and received for her services $40 per week. Claimant was injured while working for the employer appellant. The Referee and the board have found that the employments were similar and, under section 14 of the Workmen’s Compensation Law, have utilized earnings in both employments to determine the average weekly wage. Where an employee is injured in one of two or more employments in which he is concurrently employed, the board may include his joint earnings in fixing the average weekly wage if the employments are similar in nature. (Matter of Walla v. Streigel, 2 A D 2d 914; Matter of McDowell v. Flatbush Congregational Church, 277 N. Y. 536.) Here claimant testified that she was employed as a maid at both places. Her principal work was cleaning. She was not employed by the beauty parlor as a beautician. She described her duties at the beauty parlor as “ Cleaning. I waited on the customers. Put them under the dryers. Clean the mirrors and keep the bathrooms and served lunches, and things like that. That was all.” It was within the province of the Referee and the board to determine factually that the two employments were similar. Award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.

Order, Supreme Court, New York County (Ira Gammerman, *332J.H.O.), entered September 19, 2005, which granted plaintiffs motion for partial summary judgment, severed the remainder of the action, ordered that the action proceed to discovery and effectively denied defendant’s cross motion to dismiss the complaint, unanimously reversed, on the law, without costs, plaintiffs motion denied, defendant’s cross motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly. The parties’ agreement for plaintiff to supply defendant with towels was a standard City requirements contract containing a broad dispute resolution clause that mandated a three-step procedure prior to a claimant seeking limited judicial review of whether the administrative determination was in violation of lawful procedures, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion. Upon rejection of, and nonpayment for, several shipments of its towels, plaintiff pursued the first two steps of the procedure, bringing the dispute before the agency head of the Department of Citywide Administrative Services and then the City Comptroller, who each found against plaintiff. Instead of submitting the dispute to the Contract Dispute Resolution Board for the third-step review, plaintiff commenced this plenary action. The complaint should have been dismissed because plaintiff failed to comply fully with the contractual dispute resolution procedure. In an effort to evade this requirement, plaintiff proffers interpretations of individual provisions of the procedure that are inconsistent with its plain intent and violative of basic principles of contractual construction. “[A] court should not ‘adopt an interpretation’ which will operate to leave a ‘provision of a contract . . . without force and effect’ ” (Corhill Corp. v S.D. Plants, Inc., 9 NY2d 595, 599 [1961]). “An interpretation that gives effect to all the terms of an agreement is preferable to one that ignores terms or accords them an unreasonable interpretation” (Ruttenberg v Davidge Data Sys. Corp., 215 AD2d 191, 196 [1995]). Concur—Tom, J.P., Mazzarelli, Williams, McGuire and Kavanagh, JJ.

Appeal by claimant from a decision of the Unemployment Insurance Appeal Board. The Industrial Commissioner, the Referee, and the Appeal Board have all held that claimant was ineligible to receive benefits on the ground that she was unavailable for employment. Claimant’s only employment history is that of a stock clerk. After being out of the labor market for 16 years she became employed on a five-day week basis from 9:30 a.m. to 2:00 p.m. at $1.25 per hour. She worked for a year and eight months and was laid off because she refused to work one night a week. The Referee has found that claimant confined her job efforts to stores in her own neighborhood in Brooklyn or to downtown Brooklyn, and insisted on the same hours mentioned above because she is married, has two children and must be .home before they arrive from school. The Referee has also found that the hours for part-time employment in claimant’s occupation are customarily from 12 noon to 5:00 p.m., or from 11:00 a.m. to 4:00 p.m., with one full day or one late night per week, and that “ Opportunities for obtaining part time employment during the hours desired by claimant are virtually non-existent.” It was further found that “Here, by reason of her restrictions, claimant effectively eliminated herself from the labor market.” The evidence sustains such factual findings. Decision unanimously affirmed, without costs. Present—Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.

Order, Supreme Court, New York County (Barbara R. Kap*333nick, J.), entered January 18, 2006, which, to the extent appealed from as limited by the briefs, granted defendant’s CPLR 3211 (a) (7) motion to dismiss that portion of the complaint seeking a declaration that the parties’ stipulation with respect to apartment 18D violated the Rent Stabilization Code (RSC) and was thus void as against public policy, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated. Plaintiff is the owner and landlord of a building at 275 Central Park West. In 1969, it leased apartment 19A, which was subject to rent stabilization, to defendant’s late husband, Dr. Robert Liebert. The lease specifically provided that the apartment was to be used partly for professional and partly for residential purposes. In 1978, plaintiff and Dr. Liebert entered into another lease for apartment 18D, also subject to rent stabilization, which was to be used for residential purposes only. When defendant married Liebert in 1979, she moved into the apartments with him. She used apartment 19A partly as an office for her therapy practice, and even sublet a portion of that apartment to another therapist. Defendant maintains that she also used the apartment as a residence for herself and at times for her children. When Dr. Liebert died in 1988, defendant became the successor tenant of both apartments. In April 2000, plaintiff filed a petition with the State Division of Housing and Community Renewal (DHCR) for high income rent deregulation of apartment 18D. Defendant responded that her income did not exceed the $175,000 threshold and submitted tax returns to verify this assertion. In May 2000, plaintiff instituted a holdover proceeding against defendant and her stepdaughter, Dana Liebert, alleging that apartment 19A was not their primary residence. The complaint alleged that Dr. Liebert had ceased residing there in 1998, and that defendant and her new husband were using the apartment as professional offices. On December 7, 2000, the parties entered into a stipulation of settlement, later “so ordered” by the court in which they agreed that apartment 19A would be permanently deregulated and a two-year, nonregulated office lease would be signed at an initial rent of $4,400 per month, with an option to renew the lease for four successive two-year terms at a rent increase of 15% for each two-year renewal. Paragraph (5) of the stipulation provided that, in consideration for defendant entering into this office lease for apartment 19A, plaintiff agreed to refrain “in perpetuity” from making any application to DHCR for high income rent deregulation of apartment 18D and would discontinue with *334prejudice the pending petition for deregulation of that apartment. In 2004, plaintiff filed a new high rent, high income luxury deregulation petition with DHCR for apartment 18D. Defendant submitted a partial answer to the DHCR petition, claiming estoppel against plaintiff by reason of paragraph (5) of the stipulation. However, unlike the prior proceeding before DHCR, defendant did not answer the inquiry as to whether her household income exceeded $175,000 in each of the two preceding calendar years. Plaintiff then initiated the instant action seeking a judgment that the stipulation was void as against the RSC and public policy for both apartments. Defendant’s motion to dismiss the complaint for failure to state a cause of action was granted. Plaintiff appeals only from that portion of the order concerning apartment 18D, arguing that the portion of the stipulation pertaining to apartment 19A was lawful and enforceable, while the provisions concerning apartment 18D were void as against public policy. We have previously held that “an agreement in purported or actual settlement of a landlord-tenant dispute which waives the benefit of a statutory protection is unenforceable as a matter of public policy, even if it benefits the tenant” (Drucker v Mauro, 30 AD3d 37, 38 [2006], appeal dismissed 7 NY3d 844 [2006]). Such agreements undermine the “viability of the rent regulation system,” and we have consistently prohibited “landlords and tenants from making private agreements to effectively deregulate applicable housing units” (390 W. End Assoc. v Harel, 298 AD2d 11, 16 [2002]). Deregulation of apartments is only “available through regular, officially authorized means [and] not by private compact” (Draper v Georgia Props., 94 NY2d 809, 811 [1999] [citation omitted]). Applying these principles to this case, plaintiff correctly argues that the portion of the agreement pertaining to apartment 18D is void as against public policy. However, it does not follow that the portion of the agreement pertaining to apartment 19A is legal, enforceable and severable. An agreement to waive the provisions of the Rent Stabilization Law or the RSC is void as against public policy (390 W. End Assoc. v Baron, 274 AD2d 330, 332 [2000]). Where the main objective of an agreement is illegal, courts will not sever and enforce incidental legal clauses (Abright v Shapiro, 214 AD2d 496 [1995]). Since defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (7), and plaintiff did not move for summary judgment, the merits of plaintiffs complaint with regards to *335apartment 19A are not before us on this appeal. Concur—Friedman, J.P., Marlow, Sweeny, Catterson and Malone, JJ.

Appeal by carrier and employer from an award of disability compensation. Appellants raise the issues of accident and causal relation. Claimant sustained an accidental injury to his right leg while working for the same employer on May 28, 1945. He was disabled for about eight weeks and compensation was awarded and paid, and the case was closed on May 20, 1946. Claimant went back to work and continued to work although he felt pain in his back and right leg and numbness in his legs. Claimant testified that he sustained a second accident on December 23,1956, when he slipped on some rubbish on the floor of the employer’s warehouse and fell backward on his back and injured his back. He testified that he reported this accident to his foreman. This is disputed. There is medical evidence in the record that claimant had a pre-existing arachnoiditis which was aggravated and activated by the accident of December 23, 1956, causing his disability. Appellants attack claimant’s credibility and attack the medical testimony because it is based on the truth of claimant’s testimony. They characterize the testimony of one doctor as “ unconvincing ”. However, it is in the record and apparently was convincing to the -board. Of course the question of claimant’s credibility and the determination of disputed questions of fact were exclusively within the province of the board. We may not say as a matter of law that the evidence supporting the award is not substantial. Award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.

Appeal by an employer and carrier from an award of disability compensation. Appellants raise the questions of accident and causal relation. After an illness claimant was employed as a truck driver and service man for electrical appliances with the express understanding that he would not be required to do any heavy lifting. The employer provided two helpers who lifted heavy appliances while claimant only drove the truck and performed the service work. On May 7 and 8, 1959, one of the helpers was suffering from a hernia and claimant was obliged to do heavy lifting. On May 7 he helped lift a piano, and while doing so became nauseated, and on May 8 he helped lift and carry two heavy refrigerators, one down a flight of steps and the other up a flight of steps. He testified that he suffered chest pains during these activities, and upon his return home that night (May 8) the pains became very severe. The following *835morning, although he told his employer he did not feel well, he was sent to Geneva to repair a washing machine. While he was driving the truck he suffered a severe heart attack and asked a coemployee to drive him home, which was done. A doctor was called, he was hospitalized, and it was found that he had suffered a coronary occlusion. Appellants’ argument seems to be that because the final and disabling attack occurred while he was performing his usual duties of driving the truck and was not at the moment engaged in any unusual arduous work, that there was no accident. However, there is medical testimony that the lifting of the refrigerators and the piano on May 7 and 8 caused the coronary occlusion. Even the carrier’s medical witness conceded “ that it is necessary to consider, at least the possibility of the exertion of those two days as being a final precipitating factor in the ultimate myocardial infarction.” Substantial evidence supports the award. Award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.