| Aurora Indus., Inc. v Halwani |
| 2013 NY Slip Op 00445 [102 AD3d 900] |
| January 30, 2013 |
| Appellate Division, Second Department |
| Aurora Industries, Inc., et al.,Respondents, v Simon Halwani, Appellant. |
—[*1] Arnold E. DiJoseph, P.C., New York, N.Y. (Arnold E. DiJoseph III of counsel), forrespondents.
In an action, inter alia, to recover damages for conversion, the defendant appeals, aslimited by his brief, from so much of an order of the Supreme Court, Kings County(Held, J.), dated April 7, 2008, as denied that branch of his motion which was forsummary judgment on the issue of liability on his counterclaims and granted that branchof the plaintiffs' cross motion which was for summary judgment dismissing hiscounterclaims. By decision and order of this Court dated March 30, 2010, the appeal washeld in abeyance and the matter was remitted to the Supreme Court, Kings County, tohear and report as to the exhibits it considered in determining the motion and crossmotion. The Supreme Court, Kings County (Lewis, J.), has conducted a hearing and filedits report with this Court. Presiding Justice Eng has been substituted for former JusticeSantucci (see 22 NYCRR 670.1 [c]).
Ordered that the appeal is dismissed, with costs.
"It is the obligation of the appellant to assemble a proper record on appeal" (Gaffney v Gaffney, 29 AD3d857, 857 [2006]; seeFernald v Vinci, 13 AD3d 333, 334 [2004]). An appellant's record on appealmust contain all of the relevant papers that were before the Supreme Court (seeCPLR 5526; Matison v County of Nassau, 290 AD2d 494, 495 [2002];Fernald v Vinci, 13 AD3d at 334). "Appeals that are not based upon completeand proper records must be dismissed" (Garnerville Holding Co. v IMC Mgt.,299 AD2d 450, 450 [2002]).
Here, the plaintiffs contend that the record on appeal is inadequate because thedefendant omitted 10 exhibits which they submitted in opposition to his motion, interalia, for summary judgment on the issue of liability on his counterclaims, and in supportof their cross motion, among other things, for summary judgment dismissing hiscounterclaims. In response, the defendant alleges that the Supreme Court rejected thesubject exhibits on the return date of the motion and cross motion, and that they werethus properly omitted from the record. In order to resolve this issue, by decision andorder of this Court dated March 20, 2010, we held this appeal in abeyance, and remittedthe matter to the Supreme Court, Kings County, to hear and report as to the exhibits itconsidered in determining the motion and cross motion. However, the Justice who haddetermined the motion and cross motion had retired, and the Justice assigned to hear andreport was [*2]unable to reach a conclusion as to whetherthe subject exhibits had indeed been rejected as the defendant claims. Under thesecircumstances, and in light of the fact that both the plaintiffs and the defendantreferenced the subject exhibits in their respective motion papers, we must conclude thatthese exhibits were before the Supreme Court when it determined the motion and crossmotion. Indeed, the order appealed from states that the Supreme Court "read the varioussubmissions and exhibits submitted . . . by each side." Since the record onappeal does not contain the subject exhibits, it is inadequate to allow this Court to renderan informed decision. Accordingly, the defendant's appeal must be dismissed (seeFernald v Vinci, 13 AD3d at 334; Matison v County of Nassau, 290 AD2d at495). Eng, P.J., Dickerson, Chambers and Sgroi, JJ., concur.