Opinion
2016–11958 Index No. 51458/13
11-20-2019
Khadija ABOUELHASSAN, Respondent, v. Hisham Ahmed ALMEHDAWI, Appellant.
Anthony M. Bramante, Brooklyn, NY, for appellant.
Anthony M. Bramante, Brooklyn, NY, for appellant.
LEONARD B. AUSTIN, J.P., SHERI S. ROMAN, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER In an action for a divorce and ancillary relief, the defendant appeals from a judgment of divorce of the Supreme Court, Kings County (Esther M. Morgenstern, J.), dated September 23, 2016. The judgment, upon an order of the same court dated December 18, 2013, denying the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint, and a decision of the same court dated June 27, 2016, inter alia, granted the plaintiff's application to dissolve the parties' marriage.
ORDERED that the appeal is dismissed, without costs or disbursements.
As a general rule, we do not consider an issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal which was dismissed for lack of prosecution, although we have inherent jurisdiction to do so (see Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750, 697 N.Y.S.2d 866, 720 N.E.2d 86 ; Bray v. Cox, 38 N.Y.2d 350, 379 N.Y.S.2d 803, 342 N.E.2d 575 ). Here, the defendant appealed from an order dated December 18, 2013, which denied his motion pursuant to CPLR 3211(a) to dismiss the complaint. By decision and order on motion of this Court dated January 5, 2015, that appeal was dismissed for failure to prosecute. Under the circumstances of this case, the dismissal for lack of prosecution bars so much of the instant appeal as relates to the December 18, 2013, order (see Bray v. Cox, 38 N.Y.2d 350, 379 N.Y.S.2d 803, 342 N.E.2d 575 ).
The remainder of the appeal must be dismissed for failure to compile an adequate appendix. "An appellant who perfects an appeal by using the appendix method must file an appendix that contains all the relevant portions of the record in order to enable the court to render an informed decision on the merits of the appeal" ( NYCTL 1998–1 Trust v. Shahipour, 29 A.D.3d 965, 965, 815 N.Y.S.2d 479 [internal quotation marks omitted]; see Gandolfi v. Gandolfi, 66 A.D.3d 834, 835, 886 N.Y.S.2d 617 ; Patel v. Patel, 270 A.D.2d 241, 704 N.Y.S.2d 606 ). "The appendix shall contain those portions of the record necessary to permit the court to fully consider the issues which will be raised by the appellant and the respondent" (22 NYCRR 670.10.2[c][1]; see CPLR 5528[a][5] ; Deshuk–Flores v. Flores, 116 A.D.3d 996, 984 N.Y.S.2d 600 ). Here, the appellant contends that the Supreme Court erred in determining that the parties were validly married. The court's decision after trial indicates that the court received evidence at the trial on that issue, including the appellant's purported testimony that the marriage was "fake." However, the appellant's appendix does not contain any of the relevant trial transcripts and, therefore, is inadequate to enable this Court to render an informed decision on the merits.
Accordingly, the appeal must be dismissed.
AUSTIN, J.P., ROMAN, BARROS and CONNOLLY, JJ., concur.