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«Greenberg Freeman LLP, New York (Michael A. Freeman of counsel), for appellant. Zeichner Ellman & Krause LLP, New York (Jantra Van Roy of counsel), ...»

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The court properly exercised its discretion when it denied appellant’s request for an adjournment in contemplation of dismissal, and instead adjudicated him a juvenile delinquent and imposed a period of probation. The court adopted the least restrictive dispositional alternative consistent with appellant’s needs and the needs of the community (see Matter of Katherine W., 62 NY2d 947 [1984]), given the seriousness of the offense and appellant’s poor school record. Appellant brought a knife to school and brandished it at a schoolmate, which resulted in injury to the other boy.

Robert K. Fischl, Garden City, for appellant.

Snitow Kanfer Holtzer & Millus, LLP, New York (Kenneth A. Kanfer of counsel), for respondents.

_________________________

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered January 21, 2010, which, insofar as appealed from as limited by the briefs, granted defendants' motion to dismiss the first, second, sixth, seventh, and eighth causes of action, unanimously affirmed, with costs.

Plaintiff Nathan Bezoza, the father of defendant Ira Bezoza and the father-in-law of defendant Lynn Martell, Ira's wife, alleges that defendants defrauded him into resigning his interest in property that he co-owned with Ira, and that defendants then sold the property and retained the proceeds for themselves.

The complaint, insofar as asserted against defendant Darbtex, should be dismissed for failure to properly serve the corporation in accordance with the requirements of CPLR 311(a)(1). Although the doorman of the individual defendants’ apartment building could properly accept service on behalf of the individual defendants (see CPLR 308[2]; F.I. duPont, Glore Forgan & Co. v Chen, 41 NY2d 794, 797 [1977]; Al Fayed v Barak, 39 AD3d 371 [2007]; Charnin v Cogan, 250 AD2d 513, 517 [1998]), plaintiff failed to show that the doorman was “an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service” on behalf of the corporation (CPLR 311[a][1]; see Albilia v Hillcrest Gen. Hosp., 124 AD2d 499 [1986]). Contrary to the individual defendants’ contention, the record shows that plaintiff also met the mailing requirements of CPLR 308(2). The timely-filed affidavits of service indicate that the summons and complaint were mailed on April 22, 2009, two days after the delivery date, and CPLR 308(2) imposes no requirement that a defendant actually receive the mailing before jurisdiction is acquired (see Coppola v Matarasso, 184 AD2d 283 [1992]; Oxhandler v Sekhar, 88 AD2d 817, 818 [1982]). Further, the requirement that the summons and complaint be mailed “in an envelope bearing the legend ‘personal and confidential’ and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served,” pertains only to mailings made to a defendant’s “actual place of business,” and not to the defendant’s residence (CPLR 308[2]; see Ridgeway v St. John's Queens Hosp., 199 AD2d 490 [1993]).

The fraud and breach of fiduciary claims as asserted against the individual defendants should be dismissed as untimely. While the action was commenced on March 17, 2009, the fraud claim accrued when plaintiff resigned his interest in the corporation on February 27, 2003, and the two-year discovery accrual rule does not apply, as he could have discovered the fraud with reasonable diligence when he, a sophisticated businessman, signed the resignation or when he received the K-1 schedule tax form for the tax year 2003 stating that he owned a zero percent interest in WSA (see CPLR 213[8], 203[g]). Although the six-year statute of limitations applies to the breach of fiduciary duty claim (see Kaufman v Cohen, 307 AD2d 113, 119 [2003]; Powers Mercantile Corp. v Feinberg, 109 AD2d 117, 119-121 [1985], affd 67 NY2d 981 [1986]), the claim is time-barred for the same reason.

Similarly, the fraudulent conveyance claims (see Debtor and Creditor Law §§ 274-276) stemming from plaintiff’s resignation of his partnership interest in 2003 are untimely.

To the extent plaintiff’s fraudulent conveyance claims stem from his signing of the mortgage satisfaction on February 3, 2007, the action is timely. However, the allegations related to these claims “contain only legal conclusions and no specific factual allegations” (NTL Capital, LLC v Right Track Recording, LLC, 73 AD3d 410, 412 [2010]). Also, plaintiff failed to allege how his signing of the satisfaction of mortgage effected the transfer of the property, or how he was a creditor of defendants at the time of the transfer. Accordingly, the fraudulent conveyance claims should also be dismissed for failure to state a cause of action.

Eustace & Marquez, White Plains (Heath A. Bender of counsel), for appellant.

Keogh Crispi, P.C., New York (Pat James Crispi of counsel), for respondent.

_________________________

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered October 8, 2010, which, in an action for personal injuries, denied defendant/third-party plaintiff’s motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.

Defendant failed to establish its entitlement to judgment as a matter of law (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In support of the motion, defendant submitted, inter alia, plaintiff’s deposition testimony wherein he stated that he cut his finger on the jagged edge of a metal paper towel dispenser in the bathroom of defendant’s building. Although the burden did not shift to plaintiff to raise a triable issue of fact (id.), it is noted that contrary to defendant’s contention, plaintiff’s affidavit, the supervisor’s report and the hospital record are all consistent with the account plaintiff provided at his deposition (cf. Phillips v Bronx Lebanon Hosp., 268 AD2d 318, 320 [2000]).





Alexander J. Wulwick, New York, for appellant.

Mauro Lilling Naparty LLP, Great Neck (Jennifer B. Ettenger of counsel), for John R. Zambito, M.D., respondent.

Garbarini & Scher, P.C., New York (William D. Buckley of counsel), for St. Barnabas Hospital, respondent.

_________________________

Judgment, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered January 4, 2010, after a jury trial in an action alleging medical malpractice, dismissing the complaint, unanimously affirmed, without costs.

Plaintiff failed to preserve his claim that the verdict was inconsistent (see Arrieta v Shams Waterproofing, Inc., 76 AD3d 495, 496 [2010]; see Lowenstein v Normandy Group, LLC, 51 AD3d 517, 518 [2008]). The fact that plaintiff argued that the verdict was against the weight of the evidence is of no moment, because he may not avoid the consequence of his failure to preserve his inconsistency argument by attempting to characterize it as an argument addressed to the weight of the evidence (see Sims v Comprehensive Community Dev. Corp., 40 AD3d 256, 258 [2007]).

Were we to review the contention that the verdict was inconsistent as a result of the jury finding defendants departed from good and accepted medical practice without a finding of proximate cause as to the decedent’s alleged injuries, we would find that the verdict was neither inconsistent nor against the weight of the evidence (see generally Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). There exists no basis to disturb the jury’s credibility determinations (see e.g.

Bykowsky v Eskenazi, 72 AD3d 590 [2010], lv denied 16 NY3d 701 [2011]).

Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R.

Seldin of counsel), for appellants.

Laura Rosenberg & Associates, PLLC, New York (Ivan J. Rodriguez of counsel), for respondent.

_________________________

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about October 26, 2010, which denied defendants’ motion for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Defendants established the absence of serious injury by submitting an affirmed report by an orthopedic surgeon who found, on physical examination, that the range of motion in plaintiff’s left knee was normal and, on review of the MRI taken about three weeks after the accident, that there were no signs of recent trauma to the knee. Defendants also submitted an affirmed report by a radiologist who reviewed the MRI and concluded, based on the absence of evidence of current inflamation or recent trauma, that the tear she found in the medial meniscus was degenerative in origin (see Pommells v Perez, 4 NY3d 566, 580 [2005]; Tsamos v Diaz, 81 AD3d 546 [2011]). In opposition, plaintiff raised an issue of fact by submitting an affirmation by the orthopedic surgeon who performed the arthroscopic surgery on the left knee, in which he stated that plaintiff “is left with a significant permanent loss of use of the left leg,” and explained the objective testing methods he employed that supported his conclusion that the injury was causally related to the accident.

Plaintiff also submitted an affirmation by a radiologist who stated that he found no degenerative changes in the left knee (see Yuen v Arka Memory Cab Corp., 80 AD3d 481 [2011]). Further, plaintiff was only 21 at the time of the accident (see Malloy v Matute, 79 AD3d 584 [2010]).

Plaintiff also raised an issue of fact in opposition to defendants’ prima facie showing as to his 90/180-day claim, by submitting his deposition testimony and affidavit setting forth the extent to which he was prevented from performing his usual activities, and an affirmation by his orthopedic surgeon, who provided the requisite objective medical evidence to support the claim (see Gaddy v Eyler, 79 NY2d 955, 958 [1992]; Thompson v Abbasi, 15 AD3d 95, 100 [2005]; Nelson v Distant, 308 AD2d 338 [2003]).

We have considered defendants’ remaining contentions and find them unavailing.

Geoffrey P. Berman, Larchmont, for appellant.

Magovern & Sclafani, New York (Frederick J. Magovern of counsel), for respondent.

Neil D. Futerfas, White Plains, attorney for the child.

_________________________

Order of disposition, Family Court, New York County (Gloria Sosa-Lintner, J.), entered on or about October 23, 2009, which, upon a finding of permanent neglect, terminated respondent mother’s parental rights to the subject child and committed the custody and guardianship of the child to petitioner agency and the Commissioner of the Administration for Children’s Services for the purpose of adoption, unanimously affirmed, without costs.

The finding of permanent neglect was supported by clear and convincing evidence (see Social Services Law § 384-b[7][a]). The record shows that the agency exercised diligent efforts to encourage and strengthen the parental relationship by, among other things, offering the mother referrals for required services and scheduling visitation (see Matter of Lady Justice I., 50 AD3d 425, 426 [2008]). Despite these efforts, the mother failed during the statutorily relevant time period to maintain contact with the child through consistent and regular visitation or to plan for the child’s future by completing required programs (see id.; see also Matter of Lamikia Shawn S., 276 AD2d 279 [2000]).

A preponderance of the evidence shows that it would be in the child’s best interests to transfer her custody and guardianship to the petitioning agency and free her for adoption by her foster mother, with whom she has lived for more than four years (see Matter of Star Leslie W., 63 NY2d 136, 147-148 [1984]).

Given the mother’s history of nonappearance, Family Court providently exercised its discretion in refusing to grant the mother further adjournments and in striking her testimony in the fact-finding and dispositional hearings upon her failure to appear for cross-examination (see Matter of Leala T., 55 AD3d 997, 998 [2008]).

We have considered the mother’s remaining arguments and find them unavailing.

Kelner and Kelner, New York (Gail S. Kelner of counsel), for appellant.

Mound Cotton Wollan & Greengrass, New York (Steven A. Torrini of counsel), for respondent.

Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered on or about June 4, 2010, which granted defendant's motion for summary judgment, unanimously reversed, on the law, without costs, and the motion denied. Appeal from order, same court and Justice, entered September 7, 2010, which, upon reargument, adhered to its original determination, unanimously dismissed, without costs, as academic.

Plaintiff alleges she was injured when an exterior stair at the subject premises broke as she stepped onto it. The record shows that the superintendent of the building, who happened to be plaintiff's son, had repaired the stair a few months prior to her fall.

Since defendant, plaintiff's son's employer, failed to satisfy its initial burden to establish, as a matter of law, that it did not cause or create the alleged defect, the motion court should have denied defendant's motion for summary judgment (see zisa v City of New York, 39 AD3d 313 [2007]; Cuevas v City of New York, 32 AD3d 372, 373 [2006]; see also Serano v New York City Hous. Auth., 66 AD3d 867 [2009]).

Sullivan & Brill, LLP, New York (Tara Ganguly of counsel), for appellant.

Jaghab, Jaghab & Jaghab, P.C., Mineola (Matthew Fleischer of counsel), for respondent.

_________________________

Order, Supreme Court, New York County (George J. Silver, J.), entered August 17, 2010, which, in an action for personal injuries sustained in a motor vehicle accident, denied defendant MTA Bus Company’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Summary judgment was properly denied in this action where plaintiff was injured when, while driving his vehicle, he struck the back of defendant’s bus, which was double-parked in a traffic lane on a city street. The evidence, viewed in the light most favorable to plaintiff, showed that the accident occurred in the early morning hours of a rainy and foggy night and that neither the headlights nor the hazard lights of the bus were activated.

Accordingly, the record presents triable issues as to whether the accident was foreseeable and whether defendant’s conduct was a proximate cause of this rear-end collision (see White v Diaz, 49 AD3d 134, 139-140 [2008]).



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