Opinion
12746N Index No. 655957/17 Case No. 2020-02122
12-29-2020
NINTH SPACE LLC, et al. Plaintiffs–Respondents, v. James GOLDMAN, et al., Defendants, Dining Entertainment Group LLC, Defendant–Appellant.
Paul F. Condzal, New York, for appellant. Dewey Pegno & Kramarsky LLP, New York (Anders W. Pauley of counsel), for respondents.
Paul F. Condzal, New York, for appellant.
Dewey Pegno & Kramarsky LLP, New York (Anders W. Pauley of counsel), for respondents.
Webber, J.P., Mazzarelli, Gesmer, Moulton, Gonza´lez,JJ.
Appeal from order, Supreme Court, New York County (Joel M. Cohen, J.), entered on or about December 4, 2019, which, insofar as appealed from, granted plaintiffs' CPLR 3025 motion to amend the complaint with respect to the proposed cause of action for breach of contract, unanimously affirmed, without costs.
Preliminarily, we note that the record on appeal from an interlocutory judgment or order must include, among other things, "the transcript, if any" ( CPLR 5526 ). This includes the transcripts of oral argument on motions (see Kai Lin v. Strong Health, 82 A.D.3d 1585, 1586, 919 N.Y.S.2d 610 [4th Dept. 2011], lv dismissed in part, denied in part, 17 N.Y.3d 899, 933 N.Y.S.2d 649, 957 N.E.2d 1153 [2011] ). Failure to assemble a proper record, including relevant transcripts, will warrant dismissal of the appeal (see Lynch v. Consolidated Edison, Inc., 82 A.D.3d 442, 917 N.Y.S.2d 863 [1st Dept. 2011] ; Sebag v. Narvaez, 60 A.D.3d 485, 873 N.Y.S.2d 909 [1st Dept. 2009], lv denied 13 N.Y.3d 711, 2009 WL 3853145 [2009] ). Here, while defendant-appellant failed to include a copy of the transcript of the oral argument on the instant motion in the record, we will disregard defendant's technical failure and take judicial notice of the electronically filed transcript (see Long v. State of New York, 7 N.Y.3d 269, 275, 819 N.Y.S.2d 679, 852 N.E.2d 1150 [2006] ).
The motion court providently exercised its discretion in granting plaintiffs leave to amend the complaint to assert the contract cause of action which, supported by the signed contract, "addressed the failings cited by the court in its prior order" ( Donovan v. Rothman, 253 A.D.2d 627, 630, 677 N.Y.S.2d 327 [1st Dept. 1998] ; see Danise v. Agway Energy Prods., 255 A.D.2d 731, 732, 680 N.Y.S.2d 723 [3d Dept. 1998] [affirming grant of leave to amend complaint to reinstate dismissed claim] ). An order dismissing a claim on a CPLR 3211 motion "will not preclude a new action which meets and overcomes the particular objection" ( DeRonda v. Greater Amsterdam School Dist., 91 A.D.2d 1088, 1089, 458 N.Y.S.2d 310 [3d Dept. 1983] ). Here, the court dismissed plaintiffs' contract claim in the original complaint on the sole ground that they had failed to support the claim with a signed copy of the contract. Plaintiffs remedied this by producing a signed and notarized copy of the Agreement.