Yardley v. Aaserud

Appeal from an order of the Supreme Court, Herkimer County (Michael E. Daley, J.), entered March 8, 2006 in a personal injury action. The order granted the motion of plaintiff Robert P Yardley for summary judgment dismissing the counterclaim and the motion of plaintiffs for partial summary judgment on liability. It is hereby ordered that said appeal be and the same hereby is unanimously dismissed with costs. Memorandum: Plaintiffs commenced this action seeking damages for injuries they sustained when Robert P. Yardley (plaintiff) “put down” the motorcycle on which they were riding to avoid colliding with a truck driven by defendant, who allegedly failed to yield the right of way and started to turn left in front of plaintiffs’ motorcycle. Defendant counterclaimed against plaintiff, alleging that plaintiffs negligence caused or contributed to the accident. Plaintiff, individually, moved for summary judgment dismissing the counterclaim and plaintiffs, jointly, moved for partial summary judgment on liability. Supreme Court granted the respective motions, and defendant appeals. We conclude that the appeal must be dismissed because defendant failed to include in the record on appeal documents that were submitted in support of the motions (see Whyte v Destra, 298 AD2d 384, 385 [2002]; see also Wright v Rite Aid of NY [appeal No. 2], 288 AD2d 834, 836 [2001]). In support of his motion for summary judgment, plaintiff submitted an affidavit from a claims adjuster. Although the affidavit states that transcripts of two interviews with eyewitnesses are attached, the attachments are not in the record on appeal. That affidavit, as well as the attached exhibits, was incorporated by reference into plaintiffs’ motion for partial summary judgment. In the absence of those exhibits, we cannot review defendant’s contentions. Present—Gorski, J.P, Smith, Lunn, Peradotto and Pine, JJ.