EMCO TECH CONSTRUCTION CORP v. PILAVAS (2009)

In an action, inter alia, to recover damages for breach of a construction contract, the defendants Anthony Pilavas and Stoneytown Development, LLC, appeal from so much of a judgment of the Supreme Court, Nassau County (Warshawsky, J.), entered August 25, 2008, as, after a nonjury trial, and upon an order of the same court dated June 12, 2008, in effect, granting that branch of the plaintiff's motion pursuant to CPLR 4404(b) which was to set aside so much of a decision of the same court dated April 1, 2008, as awarded the plaintiff the principal sum of $3,413, is in favor of the plaintiff and against the defendant Anthony Pilavas in the principal sum of $128,028 and dismissed their counterclaims.

ORDERED that the appeal is dismissed, with costs.

The defendants Anthony Pilavas and Stoneytown Development, LLC (hereinafter the appellants), failed to include the papers in support of, and in opposition to, the plaintiff's posttrial motion pursuant to CPLR 4404(b) in the record on appeal.

It is the appellants' obligation to assemble a proper record on appeal (see CPLR 5526; 22 NYCRR § 670.10.2[b]; Sebag v. Narvaez, 60 A.D.3d 485, 873 N.Y.S.2d 909). The appellants' reliance on CPLR 5528 is misplaced, as they did not utilize the appendix method when perfecting their appeal. In the present case, the record was inadequate because if failed to include all of the relevant documents that were before the Supreme Court (see Fernald v. Vinci, 13 A.D.3d 333, 786 N.Y.S.2d 211; Matter of Allstate Ins. Co. v. Vargas, 288 A.D.2d 309, 732 N.Y.S.2d 891). Appeals that are not based on a complete and proper record to enable this Court to render an informed decision on the merits must be dismissed (see Matter of Arcarian Sys., Ltd., 38 A.D.3d 649, 832 N.Y.S.2d 88; Garnerville Holding Co. v. IMC Mgt., 299 A.D.2d 450, 749 N.Y.S.2d 892; Matison v. County of Nassau, 290 A.D.2d 494, 736 N.Y.S.2d 115).