Babayev v. Kreitzman

• Decision Date: 09 January 2019
• Docket Number: Index No. 46110/07,2017–03262
• Citation: 90 N.Y.S.3d 288,168 A.D.3d 655
• Parties: Mikhail BABAYEV, Appellant, v. Isaac KREITZMAN, Respondent.
• Court: New York Supreme Court — Appellate Division

168 A.D.3d 655

90 N.Y.S.3d 288

Mikhail BABAYEV, Appellant,

v.Isaac KREITZMAN, Respondent.

2017–03262

Index No. 46110/07

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 9, 2018

January 9, 2019

Serhiy Hoshovsky, New York, N.Y. (Chukwuemeka Nwokoro of counsel), for appellant.

Aaronson Rappaport Feinstein & Deutsch, LLP, New York, N.Y. (Steven C. Mandell of counsel), for respondent.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action to recover damages for medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Larry D. Martin, J.), entered February 22, 2017. The judgment, upon, inter alia, an amended order of the same court dated February 1, 2017, granting the defendant's motion to preclude certain evidence based upon the doctrine of collateral estoppel, and thereupon, directing dismissal of the complaint, is in favor of the defendant and against the plaintiff dismissing the complaint.

ORDERED that the appeal is dismissed, with costs.

The plaintiff commenced this action against the defendant to recover damages for medical malpractice. The defendant subsequently moved to preclude the plaintiff from presenting certain evidence based upon the doctrine of collateral estoppel.

In support of his motion, the defendant apparently argued that an order of the United States District Court for the Eastern District of New York in a related federal court action involving the plaintiff was determinative of certain issues in the subject action.

In an amended order dated February 1, 2017, the Supreme Court granted the defendant's motion, and thereupon, directed dismissal of the complaint. A subsequent judgment entered February 22, 2017, was in favor of the defendant and against the plaintiff dismissing the complaint. The plaintiff appeals from the judgment.

"It is the obligation of the appellant to assemble a proper record on appeal" ( Gaffney v. Gaffney, 29 A.D.3d 857, 857, 815 N.Y.S.2d 259 ; see Deutsche Bank Natl. Trust Co. v. Hounnou, 147 A.D.3d 814, 814, 47 N.Y.S.3d 105 ). Generally speaking, "[a]n appellant's record on appeal must contain all of the relevant papers before the Supreme Court" ( Gaffney v. Gaffney, 29 A.D.3d at 857, 815 N.Y.S.2d 259 ; see CPLR 5526 ; Deutsche Bank Natl. Trust Co. v. Hounnou, 147 A.D.3d at 814, 47 N.Y.S.3d 105 ).

"The record on appeal from a final judgment shall consist of the notice of appeal, the judgment-roll, the corrected transcript of the proceedings or a statement pursuant to subdivision (d) of rule 5525 if a trial or hearing was held, any relevant exhibits, or copies of them, in the court of original instance, any other reviewable order, and any opinions in the case" ( CPLR 5526 ; see Xiaoling Shirley He v. Xiaokang Xu, 130 A.D.3d 1386, 1387, 16 N.Y.S.3d 90 ). The judgment-roll, in turn, shall contain, among other things, "the summons, pleadings, admissions, each judgment and each order involving the merits or necessarily affecting the final judgment" ( CPLR 5017[b] ; see Xiaoling Shirley He v. Xiaokang Xu, 130 A.D.3d at 1387, 16 N.Y.S.3d 90 ). "Appeals that are not based upon complete and proper records must be dismissed" ( Garnerville Holding Co. v. IMC Mgt., 299 A.D.2d 450, 450, 749 N.Y.S.2d 892 ; see Reyes v. Eleftheria Rest. Corp., 162 A.D.3d 808, 809, 75 N.Y.S.3d 90 ; Ciafone v. Jobs for N.Y., Inc., 151 A.D.3d 692, 692, 53 N.Y.S.3d 555 ; Deutsche Bank Natl. Trust Co. v. Hounnou, 147 A.D.3d at 814, 47 N.Y.S.3d 105 ; Ghatani v. AGH Realty, LLC, 136 A.D.3d 744, 744, 24 N.Y.S.3d 535 ).

Here, the record is inadequate. The appellant failed to include all the relevant documents that were before the Supreme Court. The record does not include the defendant's notice of motion...