[App Div 2d Dept]

Stipulations, Orders, and Defaults: CPLR R. 5015; CPLR § 2005; CPLR R. 3216; CPLR § 2004

CPLR R. 5015 Relief from judgment or order

CPLR § 2005 Excusable delay or default

Davidson v Valentin, 2009 NY Slip Op 06500 (App. Div., 2nd, 2009)

On October 26, 2007, a stipulation was "so-ordered," in which the
parties consented to the entry of a judgment in favor of the plaintiffs
on their first cause of action, inter alia, to direct the defendants to
repair or replace a retaining wall on the defendants' property in
compliance with the terms of an access agreement executed by the
parties on the same date. The stipulation provided that if the
defendants failed to comply with the terms of the judgment, the parties
would place the remaining causes of action on the trial calendar. After
the defendants failed to timely comply with the terms of the judgment,
the plaintiffs placed the remaining causes of action on the trial
calendar. Thereafter, the defendants obtained multiple adjournments of
the trial date in an effort to comply with the terms of the access
agreement. When the defendants' attorney failed to appear for trial on
the third adjourned date of January 28, 2008, the court held an inquest
on the issue of damages and entered a judgment in favor of the
plaintiffs on February 28, 2008. On April 23, 2008, the defendants
moved to vacate the judgment.

To vacate their default in appearing at the trial, the
defendants were required to demonstrate both a reasonable excuse for
the default and a meritorious defense to the action (see CPLR 5015[a][1]; Zaidi v New York Bldg. Contrs., Ltd., 61 AD3d 747; Vasquez v New York City Hous. Auth., 51 AD3d 781, 782; Conserve Elec., Inc. v Tulger Contr. Corp., 36 AD3d 747). Although the court may, in its discretion, accept law office failure as a reasonable excuse (see CPLR 2005; Putney v Pearlman, 203 AD2d 333), "'a pattern of willful default and neglect' should not be excused" (Roussodimou v Zafiriadis, 238 AD2d 568, 569, quoting Gannon v Johnson Scale Co., 189 AD2d 1052, 1052). The statements by the defendants' attorney regarding his personal problems did [*2]not
adequately explain the defendants' failure to comply with the time and
terms of the court-ordered stipulation, judgment, and access agreement
dated October 26, 2007, and to comply with those terms during the
subsequent extensions of those deadlines, and defense counsel's failure
to appear on the adjourned trial date even though he knew his attempts
to further adjourn the trial had been unsuccessful (see Joseph v GMAC Leasing Corp., 44 AD3d 905; Wechsler v First Unum Life Ins. Co., 295 AD2d 340; Foster v Gherardi, 201 AD2d 701). Furthermore, the defendants failed to demonstrate that they have a meritorious defense (see Buchanan v Cardozo, 24 AD2d 620, 621, affd 16 NY2d 1029). Accordingly, the defendants' motion was properly denied.

The bold is mine.

CPLR R. 3216 Want of prosecution

(b) No
dismissal shall be directed under any portion of subdivision (a) of
this rule and no court initiative shall be taken or motion made
thereunder unless the following conditions precedent have been complied
with:

(3)
The court or party seeking such relief, as the case may be, shall have
served a written demand by registered or certified mail requiring the
party against whom such relief is sought to resume prosecution of the
action and to serve and file a note of issue within ninety days after
receipt of such demand, and further stating that the default by the
party upon whom such notice is served in complying with such demand
within said ninety day period will serve as a basis for a motion by the
party serving said demand for dismissal as against him for unreasonably
neglecting to proceed.

CPLR § 2004 Extensions of time generally

Davis v Cardiovascular Consultants of Long Is., P.C., 2009 NY Slip Op 06501 (App. Div., 2nd, 2009)

An order entered November 7, 2007, which warned the plaintiff that
the failure to serve and file a note of issue would result in dismissal
of the action, had the same effect as a valid 90-day notice pursuant to
CPLR 3216 (see Huger v Cushman & Wakefield, Inc., 58 AD3d 682; Benitez v Mutual of Am. Life Ins. Co., 24 AD3d 708; Giannoccoli v One Cent Park W. Assocs., 15 AD3d 348; Betty v City of New York, 12 AD3d 472).
Having received a 90-day notice, the plaintiff was required either to
file a timely note of issue or to move, before the default date, for an
extension of time pursuant to CPLR 2004 (see Benitez v Mutual of Am. Life Ins. Co., 24 AD3d 708; Bokhari v Home Depot U.S.A., 4 AD3d 381; McKinney v Corby, 295 AD2d 580, 581). The plaintiff did neither, and the action was subsequently dismissed pursuant to CPLR 3216.

To vacate the dismissal of an action pursuant to CPLR 3216, a
plaintiff must demonstrate both a reasonable excuse for the default in
complying with the 90-day notice and a meritorious cause of action (see CPLR 3216[e]; Felix v County of Nassau, 52 AD3d 653; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783).
Here, the plaintiff failed to submit any expert medical opinion
evidence to demonstrate the merit of his medical malpractice action (see Mosberg v Elahi, 80 NY2d 941, 942; Fiore v Galang, 64 NY2d 999, 1000-1001; Salch v Paratore, 60 NY2d 851, 852; Picot v City of New York, 50 AD3d 757; Burke v Klein, 269 AD2d 348, 348-349; Abelard [*2]v Interfaith Med. Ctr., 202 AD2d 615, 616; Feinblum v Dybner, 197
AD2d 560). Accordingly, that branch of his motion which was, in effect,
to vacate the dismissal of the action pursuant to CPLR 3216 should have
been denied.

Strange. Consider CPLR R. 3216(b)(3). Specifically, the "registered or certified" mail part.

Again, the bold is mine.

Appellate Procedure: An Incomplete Record CPLR R. 5526

CPLR R. 5526 Content and form of record on appeal

Civil v Tae Hwa Sim, 2009 NY Slip Op 06499 (App. Div., 2nd, 2009)

In an action to recover damages for personal injuries, the proposed
intervenor, Broadspire, appeals from an order of the Supreme Court,
Rockland County (Nelson, J.), dated September 15, 2008, which denied
its motion, inter alia, pursuant to CPLR 1013 for leave to intervene in
the action.

ORDERED that the appeal is dismissed, with costs.

CPLR 5526 provides that the record on appeal from an
interlocutory order shall consist of, inter alia, "the papers and other
exhibits upon which the . . . order was founded."

It is the obligation of the appellant to assemble a proper
record on appeal. An appellant's record on appeal must contain all of
the relevant papers before the Supreme Court. Appeals that are not
based upon complete and proper records must be dismissed (see Robertson v United Equities, Inc., 61 AD3d 838; Matter of Arcarian Sys. Ltd., 38 AD3d 649).
In this case, the appellant based its motion for leave to intervene in
large part on an arbitration decision which was submitted to the
Supreme Court both as an exhibit to the appellant's motion papers, and
as an exhibit to the plaintiff's papers in opposition to the motion.
However, the appellant did not include that decision in the record on
appeal. Inasmuch as the record is inadequate, we dismiss the appeal (see Matter of Arcarian Sys. Ltd., 38 AD3d at 649).

Procedure: It's a killer.

The bold is mine.

Necessary Joinder CPLR § 1001

CPLR § 1001 Necessary joinder of parties

Censi v Cove Landings, Inc., 2009 NY Slip Op 06496 (App. Div., 2nd, 2009)

Necessary parties are persons "who might be inequitably affected by a
judgment in the action" and must be made plaintiffs or defendants (see
CPLR 1001[a]). CPLR 1001(b) requires the court to order such persons
summoned, where they are subject to the court's jurisdiction. If
jurisdiction over such necessary parties can be obtained only by their
consent or appearance, the court is to determine, in accordance with
CPLR 1001(b), whether justice requires that the action proceed in their
absence (see CPLR 1001 [b]). The nonjoinder of necessary parties
may be raised at any stage of the proceedings, by any party or by the
court on its own motion, including for the first time on appeal (see City of New York v Long Is. Airports Limousine Serv. Corp., 48 NY2d 469, 475; Matter of Lezette v Board of Educ., Hudson City School Dist., 35 NY2d 272, 282; Matter of Jim Ludtka Sporting Goods, Inc. v City of Buffalo School Dist., 48 AD3d 1103, 1103-1104; Matter of Storrs v Holcomb, 245 AD2d 943, 944 n 1; Wrobel v La Ware, 229 AD2d 861; Matter of Dreyfuss v Board of Educ. of Union Free School Dist. No. 3, Town of Huntington, 42 AD2d 845; Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C1003:1; see also CPLR 1003).

Here, the record indicates the possible existence of necessary parties
who have not been joined, namely, the owners of the remainder of the
roadbed of Fish Cove Road. Those parties' interests in real property
may be affected by that portion of the Supreme Court's order which,
upon searching the record, declared Fish Cove Road to be a public
highway, and effectively granted the public an easement to pass over
their lands (see Sorbello v Birchez Assocs., LLC, 61 AD3d 1225; Schaffer v Landolfo, 27 AD3d 812; Dunkin Donuts of N.Y., Inc. v Mid-Valley Oil Co., Inc., 14 AD3d 590, 592; Matter of Princess Bldg. Corp. v Zoning Bd. of Appeals of Town of Huntington, 307 AD2d 972; Hitchcock v Boyack, 256 AD2d 842, 844; Buckley v MacDonald, 231 AD2d 599, 600; Matter of Lehrer v Wallace,
24 AD2d 602, 603). Thus, the court should not have made this
determination upon searching the record without first determining
whether all necessary parties were joined. Under the circumstances of
this case, "the questions of whether there are any . . . necessary
parties who should be joined in this action and, if so, the appropriate
procedural disposition for effecting joinder should not be determined
by this [C]ourt in the first instance" (De Ruscio v Jackson, 164
AD2d 684, 688). Accordingly, we remit the matter to the Supreme Court,
Suffolk County, to hold a hearing to determine whether there are any
necessary parties who should be joined in this action and, if so, to
compel their joinder, subject to any affirmative defenses, and if
joinder cannot be effectuated, to determine, pursuant to CPLR 1001(b),
whether the action should proceed in the absence of any necessary
parties.

It's almost always a good idea to invite everyone to the party. Note that this can be brought up on appeal for the first time, so, if you aren't careful, you can lose, even when you win.

The bold is mine.

Accord and Satisfaction

CPLR R. 3211(a)(5) the
cause of action may not be maintained because of arbitration and award,
collateral estoppel, discharge in bankruptcy, infancy or other
disability of the moving party, payment, release, res judicata, statute
of limitations, or statute of frauds

Profex, Inc. v Town of Fishkill, 2009 NY Slip Op 06320 (App. Div., 2nd, 2009)

"[T]he rule of accord and satisfaction has generally been accepted as a
legitimate and expeditious means of settling contract disputes" (Horn Waterproofing Corp. v Bushwick Iron & Steel Co.,
66 NY2d 321, 325). The party asserting the affirmative defense of
accord and satisfaction must establish that there was a disputed or
unliquidated claim between the parties which they mutually resolved
through a new contract discharging all or part of their obligations
under the original contract (see Merrill Lynch Realty/Carll Burr, Inc. v Skinner, 63 NY2d 590, 596; Pothos v Arverne Houses, 269 AD2d 377, 378; Trans World Grocers v Sultana Crackers,
257 AD2d 616, 617). The defendants established their respective
entitlement to judgment as a matter of law on the basis of an accord
and satisfaction (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557).

The bold is mine.

CPLR R. 3211(a)(5) Converted to CPLR R. 3212

CPLR R. 3212 Motion for summary judgment

Hopper v McCollum, 2009 NY Slip Op 06315 (App. Div., 2nd, 2009)

[T]he defendant interposed a verified answer. In June 2008 the
defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(5) on
the ground that the plaintiffs had received payment through their
homeowners' insurance policy and were not entitled to any additional
recovery from her. The Supreme Court, in effect, converted the motion
to dismiss into one for summary judgment dismissing the complaint and
granted the motion. We modify.

The Supreme Court properly, in effect, converted the motion to
dismiss to one for summary judgment since it was made after issue had
been joined (see Fischer v RWSP Realty, LLC, 53 AD3d 594, 595; Schultz v Estate of Sloan, 20 AD3d 520; Tufail v Hionas, 156
AD2d 670, 671), and the parties clearly charted a summary judgment
course by laying bare their proof and submitting documentary evidence
and evidentiary affidavits (see Myers v BMR Bldg. Inspections, Inc., 29 AD3d 546; Jamison v Jamison, 18 AD3d 710, 711). However, upon such conversion, the Supreme Court [*2]erred
in granting the defendant's converted motion for summary judgment
dismissing the complaint. Contrary to the defendant's contention, the
plaintiffs are not precluded from maintaining this action against the
defendant simply because they received payment from their insurance
carrier (see generally Fisher v Qualico Contr. Corp., 98 NY2d 534, 538; Spectra Audio Research, Inc. v Chon, 62 AD3d 561; Corsa v Pacific Indem. Co., 52 AD3d 450, 451; Winkelmann v Hockins, 204
AD2d 623, 623-624). If the trier of facts in this matter finds the
defendant liable and awards damages to the plaintiffs, then the
plaintiffs' receipt of the insurance payment may be relevant as a
possible setoff against the damages award (see CPLR 4545[c]; Fisher v Qualico Contr. Corp., 98 NY2d at 539-540).

While the Court notes that because issue was joined–among other things–conversion was appropriate, that is not always the case. Consider Roche v Claverack Coop. Ins. Co., 2009 NY Slip Op 01390 (App. Div., 3d, 2009). There the Third Department allowed for a pre-answer summary judgment motion because the parties charted their course and it "treated defendants' summary
judgment motion as if issue had indeed been joined." (I took out the internal quotes).

Lately I've seen a lot of 3211 motions under subdivisions that are inapplicable. More often than not, they are 3212 motions being masked behind 3211.

Supplemental summons not filed–CPLR R. 305(a)–>Dismissed–CPLR R. 3211(a)(2)

CPLR R. 305 Summons; supplemental summons, amendment
(a) Summons; supplemental summons

CPLR R. 3211(a)(2) the court has not jurisdiction of the subject matter of the cause of action

CPLR § 203 Method of computing periods of limitation generally
(c) Claim in complaint where action commenced by filing.
In an action which is commenced by filing, a claim asserted in the
complaint is interposed against the defendant or a co-defendant united
in interest with such defendant when the action is commenced.

Benn v Losquadro Ice Co., Inc., 2009 NY Slip Op 06307 (App. Div., 2nd, 2009)

The plaintiff was injured on June 20, 2003, when she slipped and
fell while working at a restaurant known as Orin's Seafood Hideaway,
located at 1683 Utica Avenue in Brooklyn. She commenced this negligence
action against, among others, the defendant Losquadro Ice Company, Inc.
(hereinafter Losquadro), the owner of the subject premises. Losquadro
commenced a third-party action against the defendant third-party
defendant Foodsaver New York, Inc., a/k/a Orin's Seafood Hideaway
(hereinafter Foodsaver). The plaintiff filed an amended complaint on
April 11, 2006, adding Foodsaver as a defendant in the action. In its
answer to the third-party complaint, Foodsaver disclosed that it had
subleased a portion of the subject premises to the appellant Utica
Restaurant Corp. (hereinafter Utica). On June 9, 2006, Losquadro served
the parties and Utica with an amended third-party complaint, which
joined Utica as a third-party defendant. On September 5, 2006, the
plaintiff filed a second amended complaint which joined Utica as a
direct defendant.

It is the filing of a supplemental summons and complaint which
commences an action against a newly-joined defendant or a third-party
defendant (see CPLR 305[a]; Perez v Paramount Communications, 92 NY2d 749, 756; Tricoche v Warner Amex Satellite Entertainment Co., 48 [*2]AD3d 671, 673; Matter of Williams v County of Genesee,
306 AD2d 865, 867). It is undisputed that Losquadro's amended
third-party complaint was never filed with the court. Therefore, that
branch of Utica's motion which was pursuant to CPLR 3211(a)(2) to
dismiss the amended third-party complaint insofar as asserted against
it should have been granted.

Contrary to Utica's contention, however, it was not entitled to
dismissal pursuant to CPLR 3211(a)(5) of the plaintiff's second amended
complaint insofar as asserted against it. A claim asserted against a
defendant in an amended filing may relate back to claims previously
asserted against a codefendant for statute of limitations purposes
where the two defendants are "united in interest" (CPLR 203[c]; see Buran v Coupal, 87 NY2d 173; Brock v Bua,
83 AD2d 61). The deposition testimony of Orin Tucker, the owner of both
Foodsaver and Utica, demonstrated that the relationship between the two
companies was such that Utica could be charged with notice of the
institution of the action under this doctrine and would not be
prejudiced in maintaining its defense on the merits (see Buran v Coupal, 87 NY2d at 178; Brock v Bua, 83 AD2d at 69).

The bold is mine.

CPLR R. 5015 motion treated as motion pursuant to CPLR R. 317

CPLR R. 2221(e) Motion for Leave to Renew

CPLR § 308 Personal service upon a natural person

CPLR R. 5015 Relief from judgment or order

CPLR § 317 Defense by person to whom summons not personally delivered

Gonzalez v City of New York, 2009 NY Slip Op 06163 (App. Div., 2nd, 2009)

The defendants proffered a reasonable justification for the failure
to present the affidavit of the defendant Miguel Carvajal in opposition
to the plaintiff's prior motion for leave to enter a default judgment
against Carvajal and in support of their prior cross motion, inter
alia, to vacate Carvajal's default in appearing in the action or
answering the complaint based on the Corporation Counsel's delay in
obtaining an affidavit from Carvajal (see CPLR 2221[e][2], [3]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392; Miller v Duffy, 162 AD2d 438, 439-440; Matter of Mangialino v White Haven Mem. Park, 132 AD2d 970, 971).

Service upon Carvajal was made, inter alia, by delivery of the
summons and complaint to a coworker at Carvajal's actual place of
business and by mailing the summons to him at his actual place of
business pursuant to CPLR 308(2) (see Anderson v GHI Auto Serv., Inc., 45 AD3d 512,
513). Although the defendants' cross motion was made pursuant to CPLR
5015(a)(1), under the circumstances of this case, it may also be
treated as a motion made pursuant to CPLR 317 (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143; Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543, 544; Mann-Tell Realty Corp. v Cappadora Realty Corp., 184 AD2d 497, 498). Upon renewal, the defendants established that Carvajal did not receive [*2]actual
notice of the summons in time to defend, he did not deliberately
attempt to avoid service, and he has a meritorious defense to the
action (see CPLR 317; Taieb v Hilton Hotels Corp., 60 NY2d 725, 727; Franklin v 172 Aububon Corp., 32 AD3d 454; Brockington v Brookfield Dev. Corp., 308 AD2d 498; Samet v Bedford Flushing Holding Corp.,
299 AD2d 404, 405). Accordingly, upon renewal, the plaintiff's prior
motion for leave to enter a default judgment against Carvajal was
properly denied and the defendants' prior cross motion to vacate
Carvajal's default and to compel the plaintiff to accept the amended
answer was properly granted.

Wells Fargo Bank, NA v Chaplin, 2009 NY Slip Op 06179 (App. Div., 2nd, 2009)

The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff (see Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343; Bank of Am. Nat. Trust & Sav. Assn. v Herrick, 233 AD2d 351; Frankel v Schilling,
149 AD2d 657, 659). Ordinarily, a process server's affidavit of service
establishes a prima facie case as to the method of service and,
therefore, gives rise to a presumption of proper service (see Household Fin. Realty Corp. of N.Y. v Brown, 13 AD3d 340; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344; Frankel v Schilling, 149 AD2d 657, 659; see also New Is. Invs. v Wynne,
251 AD2d 560). However, where there is a sworn denial that a defendant
was served with process, the affidavit of service is rebutted, and the
plaintiff must establish jurisdiction at a hearing by a preponderance
of the evidence (see Mortgage Access Corp. v Webb, 11 AD3d 592, 593; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344; Kingsland Group v Pose, 296 AD2d 440; Balancio v Santorelli, 267 AD2d 189; New Is. Invs. v Wynne, 251 AD2d 560; Bank of Am. Nat. Trust & Sav. Assn. v Herrick, 233 AD2d at 352).
[*2]

Here, the plaintiff allegedly
effected service upon the appellant pursuant to CPLR 308(2) on April
23, 2007, by delivering the summons and complaint to a person of
suitable age and discretion, who was identified as Marilyn Matheson, at
the appellant's residence in Queens. In support of her motion, in
effect, to vacate her default in appearing or answering the complaint,
the appellant submitted an affidavit from Matheson averring that the
summons and complaint had never been delivered to her, and that she was
in Pawling, New York, in April 2007. Although Matheson's affidavit did
not specify that she was in Pawling on April 23, 2007, when process
allegedly was delivered to her in Queens, the appellant submitted
additional evidence to substantiate her claim that Matheson was in
Pawling that day, including a letter from a physician who treated
Matheson for flu symptoms. The appellant's submissions also indicated
that Matheson's physical appearance varied significantly from the
description set forth in the affidavit of service. Under these
circumstances, the appellant is entitled to a hearing on the issue of
whether service was properly effected pursuant to CPLR 308(2) (see Zion v Peters, 50 AD3d 894; Mortgage Access Corp. v Webb, 11 AD3d at 593; Bankers Trust Co. of Cal. v Tsoukas,
303 AD2d at 344). Thus, we remit the matter to the Supreme Court,
Queens County, for a hearing to determine whether the appellant was
properly served and thereafter for a new determination of the motion to
vacate.

The appeal from so much of the order dated June 5, 2008, as
denied that branch of the appellant's motion which was for leave to
reargue must be dismissed, since no appeal lies from an order denying
reargument. The appeal from so much of the order dated June 5, 2008, as
denied that branch of the appellant's motion which was for leave to
renew must be dismissed as academic in light of our determination on
the appeal from the order dated December 4, 2007.

The bold is mine.

Interpretation of Contracts; SOLD!

U.S. Philips Corp. v EMI Music, Inc., 2009 NY Slip Op 06135 (App. Div., 2nd, 2009)

"[A] written agreement that is complete, clear and unambiguous on its
face must be enforced according to the plain meaning of its terms" (Greenfield v Philles Records, 98 NY2d 562, 569; see Salerno v Odoardi, 41 AD3d 574,
575). " [E]xtrinsic and parol evidence is not admissible to create an
ambiguity in a written agreement which is complete and clear and
unambiguous upon its face'" (W.W.W. Assocs. v Giancontieri, 77 NY2d 157, 163, quoting Intercontinental Planning v Daystrom, Inc., 24
NY2d 372, 379). Contrary to the defendants' contention, the Supreme
Court properly found that the language of the parties' license
agreement was clear and unambiguous as to the payment by the defendants
of certain royalties for compact discs that were "sold," even if the
compact discs were later returned by the defendants' customers. In this
regard, the subject agreement provided that the defendants would be
responsible for paying royalties to the plaintiff for compact [*2]discs
"made, used, sold or otherwise disposed of" by the defendants. The
agreement further provided that a product "shall be considered sold
when invoiced, or if not invoiced, when delivered to a party other than
the manufacturer." Accordingly, the plaintiff made a prima facie
showing of its entitlement to judgment as a matter of law on the issue
of liability with respect to so much of the complaint as sought the
payment of certain royalties for compact discs that were sold but later
returned by the defendants' customers (see Meirowitz v Bayport-Bluepoint Union Free School Dist., 57 AD3d 858, 860). In opposition thereto, the defendants failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324).

The bold is mine.

CPLR R. 3212(f) facts within the exclusive control of the moving party

CPLR R. 3212 Motion for summary judgment

(f) Facts unavailable to opposing party

Desena v City of New York, 2009 NY Slip Op 06160 (App. Div., 2nd, 2009)

Keyspan established its prima facia entitlement to judgment as a
matter of law by submitting evidence that it did not create the alleged
roadway defect that caused the plaintiff's injuries (see Alvarez v Prospect Hosp., 68
NY2d 320, 324). The plaintiff, however, established that facts
essential to resolution of this case exist, but are within the
exclusive control of Keyspan. Pursuant to CPLR 3212(f), a trial court
has the discretion to deny a motion for summary judgment or order a
continuance to allow disclosure if "facts essential to justify
opposition may exist, but cannot then be stated." There must be a
likelihood of discovery leading to such evidence (see Mazzaferro v Barterama Corp., 218
AD2d 643), and the party opposing the motion for summary judgment must
allege the existence of proof in admissible form which presents a
triable issue of fact or an acceptable excuse for the absence of
first-hand knowledge (see Chemical Bank v PIC Motors Corp., 58 NY2d 1023).

In opposition to the motion for summary judgment, the plaintiff submitted the [*2]affirmation
of his attorney alleging that the Keyspan foreman, who was present at
the Keyspan work site on the date work was performed and completed and
who, to date, has not yet been deposed, will provide facts that will
raise a triable issue of fact and are essential to the plaintiff's
ability to defend against this motion for summary judgment. To the
extent that Keyspan's motion for summary judgment is based entirely
upon evidence which refers to work which was planned or permitted to be
performed at the work site, and not upon evidence showing what work was
actually performed, the deposition of the Keyspan foreman, who was
actually present, is necessary to resolve this factual dispute.

The bold is mine.

CPLR R. 5526 Record insufficient — Appeal dismissed

CPLR R. 5526 Content and form of record on appeal

Keita v United Parcel Serv., 2009 NY Slip Op 06165 (App. Div., 2nd, 2009)

In two decisions and orders on motion, dated December 24, 2008, and
March 12, 2009, respectively, this Court directed the plaintiffs to
serve and file a supplemental record containing, inter alia, the
answers to the complaint and "the notice of motion and affidavits
annexed thereto, answering affidavits, if any, and reply affidavits, if
any, submitted in connection with the motion that resulted in the order
being appealed." The plaintiffs have failed to do so.

It is the appellants' obligation to assemble a proper record on appeal (see Salem v Mott, 43 AD3d 397; Cohen v Wallace & Minchenberg, 39 AD3d 689, 689). In this regard, "[t]he record must contain all of the relevant papers that were before the Supreme Court" (Cohen v Wallace & Minchenberg, 39 AD3d 689; see CPLR 5526; Matter of Allstate Ins. Co. v Vargas, 288
AD2d 309, 310). Where, as here, meaningful appellate review of the
Supreme Court's determination is made "virtually impossible" because of
the incomplete nature of the record submitted, dismissal of the appeal
is the appropriate disposition (Salem v Mott, 43 AD3d 397, 397).

The bold is mine,