WILMINGTON TRUST NATIONAL ASSOCIATION v. DONADIO (2023)

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Rockland County (Robert M. Berliner, J.), dated October 9, 2020.  The order, insofar as appealed from, denied those branches of the plaintiff's unopposed motion which were for summary judgment on the complaint insofar as asserted against the defendants Anthony J. Donadio, Jr., and Kimberly C. Donadio, to strike their first and seventh affirmative defenses, and for an order of reference.

ORDERED that the appeal is dismissed, without costs or disbursements.

It is the obligation of the appellant to assemble a proper record on appeal, and the record must contain all of the relevant papers that were before the Supreme Court (see CPLR 5526;  Lee v. Barnett, 134 A.D.3d 908, 910, 22 N.Y.S.3d 122).  Here, the court relied upon a “lost note affidavit from Edward G. Olson, Vice President of Loan Document for Wells Fargo Bank, N.A. (Exhibit A, NYSCEF Doc. 41)” in deciding the motion which is the subject of this appeal.  However, the record compiled by the plaintiff does not contain the lost note affidavit.  Accordingly, the record is inadequate to allow this Court to render an informed decision pertaining to the order appealed from, and the appeal must be dismissed (see Carl Daily Leasing Corp. v. Larochelle, 211 A.D.3d 795, 178 N.Y.S.3d 457).

BARROS, J.P., MILLER, GENOVESI and WAN, JJ., concur.