GREENBERG v. FRIER LEVITT LLC (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for anticipatory breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Christopher G. Quinn, J.), entered July 19, 2023.  The order granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.

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

The plaintiff commenced this action against the defendant to recover damages for anticipatory breach of contract and for a declaratory judgment.  The defendant moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint.  In an order entered July 19, 2023, the Supreme Court granted the defendant's motion and directed dismissal of the complaint without prejudice.  The plaintiff appeals.

“It is the obligation of the appellant to assemble a proper record on appeal” (Babayev v. Kreitzman, 168 A.D.3d 655, 655, 90 N.Y.S.3d 288 [internal quotation marks omitted];  see Bing v. Myrtle 6, LLC, 227 A.D.3d 769, 770, 210 N.Y.S.3d 770).  “Generally speaking, ‘a[n] appellant's record on appeal must contain all of the relevant papers before the Supreme Court’ ” (Babayev v. Kreitzman, 168 A.D.3d at 655, 90 N.Y.S.3d 288, quoting Gaffney v. Gaffney, 29 A.D.3d 857, 857, 815 N.Y.S.2d 259;  see CPLR 5526).  “Appeals that are not based upon complete and proper records must be dismissed” (Garnerville Holding Co. v. IMC Mgt., 299 A.D.2d 450, 450, 749 N.Y.S.2d 892;  see Deutsche Bank Natl. Trust Co. v. Hounnou, 147 A.D.3d 814, 814, 47 N.Y.S.3d 105).

Here, the record is inadequate for meaningful appellate review, as the record does not contain a copy of the complaint in this action.  Since this omission has rendered meaningful appellate review of the Supreme Court's order virtually impossible, the appeal must be dismissed (see Wilmington Trust, N.A. v. Donadio, 218 A.D.3d 519, 192 N.Y.S.3d 236).

IANNACCI, J.P., FORD, VOUTSINAS and MCCORMACK, JJ., concur.