Shahar Kenan, Plaintiff–Appellant, v. PLLC

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Supreme Court, Appellate Division, First Department.

Shahar Kenan, Plaintiff–Appellant, v. Levine & Blit, PLLC, Defendant–Respondent.


Decided: February 18, 2016

Renwick, J.P., Andrias, Saxe, Richter, JJ. Gary Voskresensky, Ridgewood, for appellant. Levine & Blitt, PLLC, New York (Justin S. Clark of counsel), for respondent.


Appeal from order, Supreme Court, New York County (Donna M. Mills, J.), entered April 14, 2014, which, to the extent appealed from as limited by the briefs, granted defendant Levine & Blit, PLLC's motion to dismiss the complaint as against individual defendants Matthew J. Blit, Esq. and Les J. Levine, Esq., denied plaintiff's motion for a default judgment, and directed corporate defendant Levine & Blit, PLLC to serve an answer to the complaint within twenty days of service of the order with notice of entry, unanimously dismissed, without costs, for failure to perfect the appeal in accordance with the CPLR and the rules of this Court.

The appendix submitted on this appeal is patently insufficient for the purpose of passing on the contentions raised in the respective briefs, because plaintiff failed to submit the underlying papers including his motion for default judgement, defendant's cross motion and J.H.O. Gammerman's report issued after the February 3, 2014 traverse hearing (see Feigelson v. Allstate Ins. Co., 36 A.D.2d 929 [1st Dept 1971];  22 NYCRR 670.10.2[c] [1];  CPLR 5528[a] ).

Although respondent states in its brief that the appendix was inadequate and it would seek printing costs, plaintiff did not supplement his appendix, even though he is represented by appellate counsel.  However, respondent is not entitled to its costs for supplementing the appendix, the supplement failed to cure the deficiencies in the appendix since it did not include J.H.O. Gammerman's report, which was considered by the motion court prior to issuing the order appealed.