Klein v. Richs Towing

Klein v Richs Towing (2023 NY Slip Op 00993) Klein v Richs Towing 2023 NY Slip Op 00993 Decided on February 22, 2023 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on February 22, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department COLLEEN D. DUFFY, J.P. JOSEPH J. MALTESE LINDA CHRISTOPHER LARA J. GENOVESI, JJ. 2020-04961 (Index No. 35543/19) [*1]Moshe Klein, etc., appellant, v Richs Towing, et al., defendants, R & S Jamieson Auto Body, Inc., etc., et al., respondents. Joshua N. Bleichman, Spring Valley, NY, for appellant. Feerick Nugent MacCartney, PLLC, South Nyack, NY (Donald J. Feerick, Jr., and Patrick J. McGorman of counsel), for respondents. DECISION & ORDER In a putative class action, inter alia, to recover damages for violations of the Rockland County Code, the plaintiff appeals from an order of the Supreme Court, Rockland County (Robert M. Berliner, J.), dated May 12, 2020. The order, insofar as appealed from, granted that branch of the motion of the defendants R & S Jamieson Auto Body, Inc., and Rich Jamieson which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them, and denied the plaintiff's cross-motion for leave to enter a default judgment and to certify a class pursuant to CPLR article 9. ORDERED that the appeal is dismissed, with costs. "CPLR 5526 requires that a record on appeal contain the papers and exhibits upon which the order appealed from was founded. It is the obligation of the appellant to assemble a proper record on appeal" (Bruzzese v Bruzzese, 203 AD3d 1007, 1010; see Wilmington Trust Company v Buscemi, 207 AD3d 503, 505; Eleven Stars, LLC v Central Baptist Church, 206 AD3d 884, 884-885; P.B. #7, LLC v 231 Fourth Ave. Lyceum, LLC, 167 AD3d 1028, 1029). Here, the plaintiff argues that the Supreme Court should have denied that branch of the motion of the defendants R & S Jamieson Auto Body, Inc., and Rich Jamieson (hereinafter together the defendants), which was pursuant to CPLR 3211 (a)(7) to dismiss the complaint insofar as asserted against them, and should have granted the plaintiff's cross-motion for a default judgment and to certify a class pursuant to CPLR article 9. However, the record on appeal does not contain the pleadings or any of the exhibits submitted in support of, or in opposition to, the defendants' motion or the plaintiff's cross-motion. Therefore, the record is inadequate to allow this Court to render an informed decision and the appeal must be dismissed (see Wilmington Trust Company v Buscemi, 207 AD3d at 505; Eleven Stars, LLC v Central Baptist Church, 206 AD3d at 884-885; P.B. #7, LLC v 231 Fourth Ave. Lyceum, LLC, 167 AD3d at 1029). DUFFY, J.P., MALTESE, CHRISTOPHER and GENOVESI, JJ., concur. ENTER: Maria T. Fasulo Clerk of the Court