| Cope v Barakaat |
| 2011 NY Slip Op 07800 [89 AD3d 670] |
| November 1, 2011 |
| Appellate Division, Second Department |
| Dock A. Cope, Appellant, v Aatif Barakaat et al.,Defendants, and Olabanji Awosika et al., Respondents. |
—[*1] Lazarowitz & Manganillo, LLP, Brooklyn, N.Y. (Philip M. Hines of counsel), for respondentOlabanji Awosika. Donald G. Davis, New York, N.Y., for respondent Greenpoint Mortgage Funding,Inc.
In an action, inter alia, to set aside a deed, the plaintiff appeals from (1) an order of theSupreme Court, Kings County (Schneier, J.), dated May 21, 2010, which granted the motion ofthe defendant Olabanji Awosika pursuant to CPLR 3216 to dismiss the complaint insofar asasserted against that defendant for failure to prosecute and denied his cross motion to restore theaction to the pre-note of issue calendar, and (2) an order of the same court dated October 1, 2010,which granted the separate motion of the defendant Olabanji Awosika to cancel two notices ofpendency filed in connection with the subject real property and denied his separate cross motion,inter alia, for leave to renew his opposition to the motion of the defendant Olabanji Awosikapursuant to CPLR 3216 to dismiss the complaint insofar as asserted against that defendant forfailure to prosecute.
Ordered that the order dated May 21, 2010, is affirmed; and it is further,
Ordered that the appeal from the order dated October 1, 2010, is dismissed; and it is further,
Ordered that one bill of costs is awarded to the defendants Olabanji Awosika and GreenpointMortgage Funding, Inc., payable by the plaintiff.
The appeal from the order dated October 1, 2010, must be dismissed. It is the obligation ofthe appellant to assemble a proper record on appeal (see Udell v Naghavi, 82 AD3d 960 [2011]; LaSalle Bank N.A. v Henderson, 69AD3d 679 [2010]; Wen Zong Yu vHua Fan, 65 AD3d 1335 [2009]). That record "must contain all of the relevant papersthat were before the Supreme Court" (LaSalle Bank [*2]N.A.v Henderson, 69 AD3d at 680 [internal quotation marks omitted]; see CPLR 5526;Wen Zong Yu v Hua Fan, 65 AD3d at 1335). Here, although the plaintiff appealed fromthe order dated October 1, 2010, granting the motion of the defendant Olabanji Awosika tocancel two notices of pendency filed in connection with certain real property that is the subject ofthis action and denying his cross motion, inter alia, for leave to renew his opposition toAwosika's separate motion pursuant to CPLR 3216 to dismiss the complaint insofar as assertedagainst him, which had been determined in an order dated May 21, 2010, the plaintiff has notincluded, in the record, any of the papers submitted in opposition to the cross motion or replypapers submitted in connection with the motion. Inasmuch as the record is inadequate to reviewthe order dated October 1, 2010, we dismiss the appeal from that order (see Udell v Naghavi, 82 AD3d960 [2011]; LaSalle Bank N.A. vHenderson, 69 AD3d 679 [2010]; Wen Zong Yu v Hua Fan, 65 AD3d at 1335).
Having been served with a 90-day notice pursuant to CPLR 3216, the plaintiff was requiredto file a note of issue in compliance with the notice or to move, before the default date, either tovacate the notice or to extend the 90-day period pursuant to CPLR 2004 (see Gagnon v Campbell, 86 AD3d623, 624 [2011]; Sanchez vSerje, 78 AD3d 1155, 1156 [2010]; Bokhari v Home Depot U.S.A., 4 AD3d 381 [2004]). The plaintiffdid none of these. The plaintiff's mere service of a note of issue upon the defendants wasinsufficient to comply with the statute (see CPLR 3216 [b]). Thus, to avoid dismissal ofthe complaint, the plaintiff was required to show a justifiable excuse for the delay and apotentially meritorious cause of action (see CPLR 3216 [e]; Dominguez v Jamaica Med. Ctr., 72AD3d 876 [2010]; Picot v City ofNew York, 50 AD3d 757, 757-758 [2008]; Serby v Long Is. Jewish Med. Ctr., 34 AD3d 441 [2006]). Theplaintiff failed to tender a justifiable excuse for his failure to comply with the 90-day notice(see Baczkowski v Collins Constr. Co., 89 NY2d 499, 504 [1997]), or for his inordinatedelay in the prosecution of this action (see Picot v City of New York, 50 AD3d at 758; Ovchinnikov v Joyce Owners Corp., 43AD3d 1124, 1127 [2007]; Serby vLong Is. Jewish Med. Ctr., 34 AD3d 441 [2006]). Furthermore, the plaintiff failed tosubmit any affidavit of merit (see Picotv City of New York, 50 AD3d 757 [2008]; Burke v Klein, 269 AD2d 348,348-349 [2000]). The proposed amended complaint submitted in opposition to Awosika's motionpursuant to CPLR 3216 to dismiss the complaint insofar as asserted against him for failure toprosecute did not have a verification and, therefore, could not be utilized as an affidavit (cf.CPLR 105 [u]). Accordingly, the Supreme Court properly granted Awosika's motionpursuant to CPLR 3216 to dismiss the complaint insofar as asserted against him. For the samereasons, the plaintiff's cross motion to restore the action to the pre-note of issue calendar wasproperly denied (see CPLR 5015 [a] [1]; Lopez v Imperial Delivery Serv., 282AD2d 190, 197 [2001]; cf. Dorio vCounty of Suffolk, 58 AD3d 594, 595 [2009]). Rivera, J.P., Florio, Austin and Sgroi,JJ., concur.