REYES v. ELEFTHERIA REST CORP (2018)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Rudolph E. Greco, Jr., J.), entered February 17, 2016, and (2) an order of the same court dated March 8, 2016.  The order entered February 17, 2016, inter alia, granted that branch of the motion of the defendants Eleftheria Rest. Corp. and Matthew Reid which was to vacate a judgment entered July 30, 2015, upon their failure to appear or answer.  The order dated March 8, 2016, sua sponte, vacated a so-ordered stipulation entered September 1, 2015.

ORDERED that the appeals are dismissed, with costs.

The order dated March 8, 2016, does not decide a motion made on notice.  No appeal lies as of right from an order which does not decide a motion made on notice (see CPLR 5701[a][2] ).  No application was made for leave to appeal, and, under the circumstances of this case, we decline to grant leave to appeal on our own motion (see Gamman v. Silverman, 135 A.D.3d 814, 815, 24 N.Y.S.3d 347;  Istomin v. Istomin, 130 A.D.3d 575, 575, 12 N.Y.S.3d 886).  Accordingly, the appeal from the order dated March 8, 2016, must be dismissed.

With respect to the appeal from the order entered February 17, 2016, “[i]t is the obligation of the appellant to assemble a proper record on appeal” (Deutsche Bank Natl. Trust Co. v. Hounnou, 147 A.D.3d 814, 814, 47 N.Y.S.3d 105 [internal quotation marks omitted];  see Ciafone v. Jobs for N.Y., Inc., 151 A.D.3d 692, 53 N.Y.S.3d 555;  Blaylock v. State of New York, 118 A.D.3d 836, 836, 987 N.Y.S.2d 245).  “An appellant's record on appeal must contain all of the relevant papers before the Supreme Court” (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 Ciafone v. Jobs for N.Y., Inc., 151 A.D.3d at 692, 57 N.Y.S.3d 491;  Ghatani v. AGH Realty, LLC, 136 A.D.3d 744, 24 N.Y.S.3d 535).  Here, the record on appeal is inadequate.  The plaintiff failed to include, among other things, documents that the Supreme Court relied upon and referred to in the order entered February 17, 2016, such as the amended summons and verified complaint.  Accordingly, dismissal of the appeal is the appropriate disposition.

RIVERA, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.