Opinion
Mot. 411/17 CA 16–01124
06-08-2018
COUNTY OF JEFFERSON, Plaintiff–Respondent, v. ONONDAGA DEVELOPMENT, LLC, Defendant–Appellant.
Motion for reargument be and the same hereby is granted in part and, upon reargument, the memorandum and order entered June 16, 2017 ( 151 A.D.3d 1793, 59 N.Y.S.3d 203 [4th Dept. 2017] ) is amended by deleting the ninth paragraph of the memorandum and replacing it with the following paragraph:
To the extent that the County contends that the encroachment was permissible under the doctrine of lateral support, the County's submissions in support of its motion do not contain that contention, and thus that contention is not properly before us (see Ciesinski v. Town of Aurora , 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 [4th Dept. 1994] ). Although the County asserts that it raised that contention in the memoranda of law that it submitted in support of its motion, we note that the memoranda of law are not part of the record on appeal, and the County failed to object to defendant's submitted appendix and failed to submit its own appendix containing those memoranda (see CPLR 5528 [b]; 22 NYCRR 1000.4 [d][2][ii]; Lyndaker v. Board of Educ. of W. Can. Val. Cent. Sch. Dist. , 129 A.D.3d 1561, 1564–1565, 12 N.Y.S.3d 430 [4th Dept. 2015] ; see generally Zawatski v. Cheektowaga–Maryvale Union Free Sch. Dist. , 261 A.D.2d 860, 860, 690 N.Y.S.2d 463 [4th Dept. 1999], lv denied 94 N.Y.2d 754, 700 N.Y.S.2d 427, 722 N.E.2d 507 [1999] ). June 8, 2018.)