theCPLRblog

CPLR 5513 5701 5526 3212b 5501

CPLR R. 5513 Time to take appeal, cross-appeal or move for permission to appeal

CPLR § 5701 Appeals to appellate division from supreme and county courts

CPLR R. 5526 Content and form of record on appeal

CPLR § 5501 Scope of review

CPLR R. 3212 Motion for summary judgment

Fazio v Costco Wholesale Corp., 2011 NY Slip Op 04740 (App. Div., 1st 2011)

We reject plaintiffs' contention that the appeal is untimely because defendant filed its notice of appeal 32 days after it was served electronically with notice of the entry of the order (see CPLR 5513[a]). A New York State Court Electronic Filing (NYSCEF) site confirmation shows the date on which the order with notice of entry was filed electronically and e-mail notifications were sent to counsel for the parties. However, the NYSCEF site's transmission of notification of the entry to e-mail service addresses "shall not constitute service of notice of entry by any party" (22 NYCRR 202.5b[h][3]). "A party shall serve notice of entry of an order . . . on another party by serving a copy of the notification . . . and an express statement that the transmittal constitutes notice of entry" (id.). The only affidavit of service in the record shows that the notice of entry was served on defendant by mail. Thus, defendant had 35 days to notice its appeal (see CPLR 2103[b][2]).

Gross v 141-30 84th Rd. Apt. Owners Corp., 2011 NY Slip Op 04746 (App. Div., 1st 2011)

Although Supreme Court's order was not appealable as of right because it did not decide a motion made on notice (see CPLR 5701[a][2]), in the interest of judicial economy, we nostra sponte deem the notice of appeal a motion for leave to appeal and grant the motion (see CPLR 5701[c]; Winn v Tvedt, 67 AD3d 569 [2009]).

Supreme Court erred in granting plaintiff's application, since plaintiff failed to show that defendants' noncompliance with the court's discovery orders was "willful, contumacious or due to bad faith" (Weissman v 20 E. 9th St. Corp., 48 AD3d 242, 243 [2008]; Dauria v City of New York, 127 AD2d 459, 460 [1987]). Indeed, the record shows that defendants provided plaintiff with the discovery owed pursuant to Supreme Court's most recent order. Prior to that order, most of the delays in the discovery schedule were due to plaintiff's actions. Where, as here, delays in discovery were caused by both parties' actions, the unilateral and drastic sanction of striking the pleadings is inappropriate (Daimlerchrysler Ins. Co. v Seck, 82 AD3d 581 [2011]; Sifonte v Carol Gardens Hous. Co., 70 AD2d 563, 564 [1979]).

Block 6222 Constr. Corp. v Sobhani, 2011 NY Slip Op 04614 (App. Div., 2nd 2011)

"It is the obligation of the appellant to assemble a proper record on appeal, which must contain all of the relevant papers that were before the Supreme Court" (Wen Zong Yu v Hua Fan, 65 AD3d 1335, 1335; see CPLR 5526; Cohen v Wallace & Minchenberg, 39 AD3d 689; Matter of Remy v Mitchell, 60 AD3d 860). Since, under the circumstances, the record here is inadequate to enable this Court to render an informed decision on the merits, the appeal must be dismissed (see Emco Tech Constr. Corp. v Pilavas, 68 AD3d 918, 918-919; Matter of Allstate Ins. Co. v Vargas, 288 AD2d 309, 310).

Cocom-Tambriz v Surita Demolition Contr., Inc., 2011 NY Slip Op 04622 (App. Div., 2nd 2011)

Moreover, this Court has the authority to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court (see CPLR 3212[b]; Harsch v City of New York, 78 AD3d 781, 784; Nassau Plaza Assoc., L.P. v Greater N.Y. Mut. Ins. Co., 74 AD3d 1159, 1160). Accordingly, upon searching the record, we award summary judgment to the defendants third-party plaintiffs on the issue of whether the plaintiff sustained a grave injury.

Williams v New York City Health & Hosps. Corp., 2011 NY Slip Op 04662 (App. Div., 2nd 2011)

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

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.

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,