Opinion
Index No. 505484/15 No. 2019-08979
06-22-2022
Eleven Stars, LLC, respondent, v. Central Baptist Church, appellant.
Pacheco & Lugo, PLLC (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Kenneth J. Gorman], of counsel), for appellant. Abrams Fensterman, LLP, White Plains, NY (Robert A. Spolzino and David A. House of counsel), for respondent.
Pacheco & Lugo, PLLC (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Kenneth J. Gorman], of counsel), for appellant.
Abrams Fensterman, LLP, White Plains, NY (Robert A. Spolzino and David A. House of counsel), for respondent.
COLLEEN D. DUFFY, J.P. SHERI S. ROMAN JOSEPH J. MALTESE WILLIAM G. FORD, JJ.
DECISION & ORDER
In an action pursuant to RPAPL article 6 to recover possession of real property, the defendant appeals from an order of the Supreme Court, Kings County (Sylvia G. Ash, J.), dated June 13, 2019. The order, insofar as appealed from, upon reargument, adhered to a prior determination in an order of the same court dated October 26, 2017, denying the defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the appeal is dismissed, with costs.
"CPLR 5526 requires that a record on appeal contain the papers and exhibits upon which the order appealed from was founded. It is the obligation of the appellant to assemble a proper record on appeal" (Bruzzese v Bruzzese, 203 A.D.3d 1007, 1010; see 126 Henry St., Inc. v Cater, 197 A.D.3d 598, 601; Wells Fargo Bank, N.A. v Bullen, 195 A.D.3d 881; Matter of Petrosino v Petrosino, 192 A.D.3d 1037; Babayev v Kreitzman, 168 A.D.3d 655, 655-656). Here, the defendant argues that, upon reargument, the Supreme Court should have granted its prior cross motion for summary judgment dismissing the complaint. However, the record on appeal does not contain the pleadings or the papers submitted in support of and in opposition to the defendant's coss motion. Since these omissions have rendered meaningful review of the court's order "virtually impossible,"
dismissal of the appeal is the appropriate disposition (Babayev v Kreitzman, 168 A.D.3d at 656 [internal quotation marks omitted]; see 126 Henry St., Inc. v Cater, 197 A.D.3d at 601).
DUFFY, J.P., ROMAN, MALTESE and FORD, JJ., concur.
Motion by the respondent, inter alia, to dismiss the appeal on the ground that no appeal lies from an order denying reargument and to dismiss the appeal on the ground that no appeal lies as of right from an order that is not the result of a motion made on notice and leave to appeal has not been granted. By decision and order on motion dated October 23, 2020, those branches of the motion were held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is
ORDERED that the branches of the motion which are to dismiss the appeal are denied.
DUFFY, J.P., ROMAN, MALTESE and FORD, JJ., concur.