FITZPATRICK v. Michele Fitzpatrick, respondent (and a third-party action). (2024)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated April 30, 2020.  The order, insofar as appealed from, denied that branch of the motion of Eileen Fitzpatrick which was for leave to renew her opposition to that branch of the motion of the defendant Michele Fitzpatrick which was for summary judgment dismissing the second amended complaint insofar as asserted against her, which had been granted in an order of the same court dated September 30, 2019.

ORDERED that the appeal is dismissed, with costs.

Pursuant to CPLR 5526 “[i]t 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” (Wilmington Trust, N.A. v. Donadio, 218 A.D.3d 519, 519, 192 N.Y.S.3d 236;  see Eleven Stars, LLC v. Central Baptist Church, 206 A.D.3d 884, 884, 168 N.Y.S.3d 699).  In circumstances where an appellant's failure to compile a “complete and proper record[ ]” “render[s] meaningful appellate review of the court's [determination] virtually impossible,” the appeal “must be dismissed” (Ciafone v. Jobs for NY, Inc., 151 A.D.3d 692, 692, 53 N.Y.S.3d 555 [internal quotation marks omitted];  see Eleven Stars, LLC v. Central Baptist Church, 206 A.D.3d at 885, 168 N.Y.S.3d 699;  cf.  OneWest Bank, FSB v. Segal, 221 A.D.3d 1020, 1023, 202 N.Y.S.3d 144).

Here, after the Supreme Court granted that branch of the motion of the defendant Michelle Fitzpatrick (hereinafter the defendant) which was for summary judgment dismissing the second amended complaint insofar as asserted against her, Eileen Fitzpatrick (hereinafter the decedent) moved, inter alia, for leave to renew her opposition to that branch of the defendant's motion.  In an order dated April 30, 2020, the court, among other things, denied that branch of the decedent's motion, and the decedent appealed.  During the pendency of the appeal, the decedent died, and the plaintiff, as the executor of the decedent's estate, was substituted for her.

On appeal, the record relied upon by the plaintiff does not include various papers relied upon by the Supreme Court, including the pleadings or any of the other papers submitted in support of, or in opposition to, the defendant's motion for summary judgment (cf.  Cripps v. Dibisceglie, 172 A.D.3d 1305, 1306, 102 N.Y.S.3d 83).  “Since these omissions have rendered meaningful review of the court's order virtually impossible, dismissal of the appeal is the appropriate disposition” (Eleven Stars, LLC v. Central Baptist Church, 206 A.D.3d at 885, 168 N.Y.S.3d 699 [internal quotation marks omitted];  see Matter of Progressive Specialty Ins. Co. v. Seng Jin Jang, 211 A.D.3d 736, 736–737, 177 N.Y.S.3d 905;  Wilmington Trust Co. v. Buscemi, 207 A.D.3d 503, 503–505, 169 N.Y.S.3d 544).

IANNACCI, J.P., MALTESE, VOUTSINAS and VENTURA, JJ., concur.