U.S. Bank National Association, etc., respondent, v. Dorrell McKenzie, appellant, et al., defendants. (2026)

Argued—March 3, 2026

DECISION & ORDER

O/

In an action to foreclose a mortgage, the defendant Dorrell McKenzie appeals from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated November 13, 2023.  The order, insofar as appealed from, denied that defendant's cross-motion for leave to renew that branch of her prior motion which was to vacate her default in opposing those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against her and for an order of reference, which had been denied in an order of the same court dated December 17, 2019, upon renewal, pursuant to CPLR 3025(b) for leave to amend her answer to assert certain affirmative defenses, and pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against her as time-barred and for failure to comply with RPAPL 1304.

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

In July 2017, the plaintiff commenced this action against the defendant Dorrell McKenzie (hereinafter the defendant), among others, to foreclose a mortgage on certain real property located in Brooklyn.  In February 2018, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference.  The defendant did not oppose the motion.  In an order dated May 8, 2018, the Supreme Court granted the plaintiff's motion and appointed a referee to compute the amount due to the plaintiff.

In August 2019, the defendant allegedly moved, among other things, to vacate her default in opposing the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against her and for an order of reference.  In an order dated December 17, 2019, the Supreme Court denied the motion.  In February 2022, the plaintiff moved for a judgment of foreclosure and sale.  The defendant cross-moved for leave to renew that branch of her prior motion which was to vacate her default in opposing those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against her and for an order of reference, upon renewal, pursuant to CPLR 3025(b) for leave to amend her answer to assert certain affirmative defenses, and pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against her as time-barred and for failure to comply with RPAPL 1304.  In an order dated November 13, 2023, the Supreme Court, among other things, denied the defendant's cross-motion.  The defendant appeals.

“It is the obligation of the appellant to assemble a proper record on appeal” (Bing v. Myrtle 6, LLC, 227 AD3d 769, 770 [internal quotation marks omitted];  see Matter of Loreti v. Lorcress Enters., Inc., 241 AD3d 935, 936–937).  “Generally speaking, ‘[a]n appellant's record on appeal must contain all of the relevant papers before the Supreme Court’ ” (Babayev v. Kreitzman, 168 AD3d 655, 655, quoting Gaffney v. Gaffney, 29 AD3d 857, 857;  see Matter of Loreti v. Lorcress Enters., Inc., 241 AD3d at 936–937).  “Appeals that are not based upon complete and proper records must be dismissed” (Bing v. Myrtle 6, LLC, 227 AD3d at 770 [internal quotation marks omitted];  see Matter of Loreti v. Lorcress Enters., Inc., 241 AD3d at 936–937).

Here, the record is inadequate for meaningful appellate review.  The defendant failed to include in the record all relevant documents that were before the Supreme Court on her cross-motion for leave to renew, including any affidavits, affirmations, or exhibits submitted by the plaintiff in connection with its motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference, the defendant's notice of motion, among other things, to vacate her default in opposing the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against her and for an order of reference and any affidavits, affirmations or exhibits submitted by the defendant in support of that motion, any affidavits, affirmations, or exhibits submitted by the plaintiff in opposition to the defendant's motion, among other things, to vacate her default in opposing the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against her and for an order of reference, or the order dated December 17, 2019.  Since these omissions have rendered meaningful appellate review virtually impossible, the appeal must be dismissed (see Matter of Loreti v. Lorcress Enters., Inc., 241 AD3d at 937;  Bing v. Myrtle 6, LLC, 227 AD3d at 770;  Babayev v. Kreitzman, 168 AD3d at 656).

CHAMBERS, J.P., DOWLING, WAN and VENTURA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court