| Elgart v Berezovsky |
| 2014 NY Slip Op 08956 [123 AD3d 970] |
| December 24, 2014 |
| Appellate Division, Second Department |
[*1]
| Vera Elgart, Respondent-Appellant, v MichaelBerezovsky, Appellant-Respondent. |
Yonatan Levoritz, P.C., Brooklyn, N.Y., for appellant-respondent.
Zara Javakov, Brooklyn, N.Y., for respondent-appellant.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by hisbrief, from stated portions of an order of the Supreme Court, Kings County (Thomas, J.),dated April 9, 2014, which, inter alia, denied those branches of his motion which werepursuant to CPLR 4402 for a mistrial and to award him sole physical custody of theparties' child, and granted those branches of the plaintiff's cross motion which were toquash certain subpoenas and to restrain him from issuing subpoenas to the child'steachers, and the plaintiff cross-appeals, as limited by her brief, from so much of thesame order as granted that branch of the defendant's motion which was to allow a reportprepared by a court-appointed forensic evaluator to be released to the defendant's expertwitness and denied those branches of her cross motion which were to restrain thedefendant from issuing subpoenas to the child's pediatrician, babysitter, and paternal andmaternal grandmothers.
Ordered that the appeal from so much of the order as granted those branches of theplaintiff's cross motion which were to quash certain subpoenas and to restrain thedefendant from issuing subpoenas to the child's teachers, and the cross appeal from somuch of the order as denied those branches of the plaintiff's cross motion which were torestrain the defendant from issuing subpoenas to the child's pediatrician, babysitter, andpaternal and maternal grandmothers are dismissed; and it is further,
Ordered that the order is affirmed insofar reviewed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
It is the obligation of the appellant to assemble a proper record on appeal (see Green Tree Credit, LLC vJelks, 120 AD3d 1300 [2014]; Matter of Rose G. [Vincent G.], 120 AD3d 683, 684[2014]; Matter of George vKings County Hosp. Ctr., 119 AD3d 569 [2014]). Here, neither the originalrecord filed by the defendant nor the supplemental joint record contain the plaintiff'scross motion, inter alia, to quash certain subpoenas or restrain the defendant from issuingcertain subpoenas, or any of the papers that were submitted in support of or in oppositionto that cross motion. Since the record is inadequate to enable this Court to render aninformed decision on the merits regarding so much of the appeal and cross appeal asrelate to that cross motion, so much of the appeal and cross appeal as relate to that crossmotion must be dismissed (see Green Tree Credit, LLC v Jelks, 120 AD3d at1300; Al-Shahrani v Hudson Auto Traders, Inc., 110 AD3d 749[2013]; Neunteufel v Nelnet Loan Servs., Inc., 104 [*2]AD3d 657, 657-658 [2013]).
The Supreme Court providently exercised its discretion in denying that branch of thedefendant's motion which was pursuant to CPLR 4402 for a mistrial based on, amongother things, the lengthy delays that occurred during the trial of this action. It cannot besaid that the denial of that branch of the defendant's motion resulted in a substantialpossibility of injustice (see Yorkv York, 98 AD3d 1038 [2012], affd 22 NY3d 1051 [2014]; Taveras v Martin, 54 AD3d667, 668 [2008]; see alsoLieberman v Lieberman, 112 AD3d 583, 584 [2013]).
The Supreme Court providently exercised its discretion in granting that branch of thedefendant's motion which was to allow a report prepared by a court-appointed forensicexaminer to be released to an expert witness retained by the defendant. The plaintiffcontends that the court should have denied that branch of the motion because the expertwitness should have been precluded from testifying at trial as a result of the defendant'sfailure to timely disclose the identity of the expert witness pursuant to CPLR 3101 (d).However, because an adjournment of the trial ameliorated any prejudice to the plaintiffresulting from the belated disclosure, the court providently exercised its discretion indeclining to preclude the expert witness from testifying at trial (seeArcamone-Makinano v Britton Prop., Inc., 117 AD3d 889, 891 [2014]; Burbige v Siben & Ferber,115 AD3d 632, 633 [2014]; Barchella Contr. Co., Inc. v Cassone, 88 AD3d 832[2011]).
The defendant's remaining contentions are without merit. Mastro, J.P., Roman, Sgroiand Maltese, JJ., concur.