Cope v. Barakaat

• Decision Date: 01 November 2011
• Citation: 89 A.D.3d 670,2011 N.Y. Slip Op. 07800,931 N.Y.S.2d 910
• Court: New York Supreme Court — Appellate Division
• Parties: Dock A. COPE, appellant,v.Aatif BARAKAAT, et al., defendants, Olabanji Awosika, et al., respondents.

89 A.D.3d 670

931 N.Y.S.2d 910

2011 N.Y. Slip Op. 07800

Dock A. COPE, appellant,

v.Aatif BARAKAAT, et al., defendants, Olabanji Awosika, et al., respondents.

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

Nov. 1, 2011.

OPINION TEXT STARTS HEREJoseph A. Altman, P.C., Bronx, N.Y., for appellant.Lazarowitz & Manganillo, LLP, Brooklyn, N.Y. (Philip M. Hines of counsel), for respondentOlabanji Awosika.Donald G. Davis, New York, N.Y., for respondentGreenpoint Mortgage Funding, Inc.

In an action, inter alia, to set aside a deed, the plaintiff appeals from (1) an order of the Supreme Court, Kings County(Schneier, J.), dated May 21, 2010, which granted the motion of the defendantOlabanji Awosika pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against that defendant for failure to prosecute and denied his cross motion to restore the action to the pre-note of issue calendar, and (2) an order of the same court dated October 1, 2010, which granted the separate motion of the defendantOlabanji Awosika to cancel two notices of pendency filed in connection with the subject real property and denied his separate cross motion, inter alia, for leave to renew his opposition to the motion of the defendantOlabanji Awosika pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against that defendant for failure to prosecute.

ORDERED that the order dated May 21, 2010, is affirmed; and it is further,

ORDERED that the appeal from the order dated October 1, 2010, is dismissed; and it is further,

ORDERED that one bill of costs is awarded to the defendantsOlabanji Awosika and Greenpoint Mortgage Funding, Inc., payable by the plaintiff.

The appeal from the order dated October 1, 2010, must be dismissed.It is the obligation of the appellant to assemble a proper record on appeal ( seeUdell v. Naghavi, 82 A.D.3d 960, 919 N.Y.S.2d 79;LaSalle Bank N.A. v. Henderson, 69 A.D.3d 679, 891 N.Y.S.2d 655;Wen Zong Yu v. Hua Fan, 65 A.D.3d 1335, 885 N.Y.S.2d 605).That record “must contain all of the relevant papers that were before the Supreme Court”( LaSalle Bank N.A. v. Henderson, 69 A.D.3d at 680, 891 N.Y.S.2d 655[internal quotation marks omitted];seeCPLR 5526;Wen Zong Yu v. Hua Fan, 65 A.D.3d at 1335, 885 N.Y.S.2d 605).Here, although the plaintiff appealed from the order dated October 1, 2010, granting the motion of the defendantOlabanji Awosika to cancel two notices of pendency filed in connection with certain real property that is the subject of this action and denying his cross motion, inter alia, for leave to renew his opposition to Awosika's separate motion pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against him, which had been determined in an order dated May 21, 2010, the plaintiff has not included, in the record, any of the papers submitted in opposition to the cross motion or reply papers submitted in connection with the motion.Inasmuch as the record is inadequate to review the order dated October 1, 2010, we dismiss the appeal from that order ( seeUdell v. Naghavi, 82 A.D.3d 960, 919 N.Y.S.2d 79;LaSalle Bank N.A. v. Henderson, 69 A.D.3d 679, 891 N.Y.S.2d 655;Wen Zong Yu v. Hua Fan, 65 A.D.3d at 1335, 885 N.Y.S.2d 605).

Having been served with a 90–day notice pursuant to CPLR 3216, the plaintiff was required to file a note of issue in compliance with the notice or to move, before the default date, either to vacate the notice or to extend the 90–day period pursuant to CPLR 2004( seeGagnon v. Campbell, 86 A.D.3d 623, 624, 927 N.Y.S.2d 602;Sanchez v. Serje, 78 A.D.3d 1155, 1156, 913 N.Y.S.2d 919;Bokhari v. Home Depot U.S.A., 4 A.D.3d 381, 771 N.Y.S.2d 395).The plaintiff did none of these.The plaintiff's mere service of a note of issue upon the defendants was insufficient to comply with the statute( seeCPLR 3216[b] ).Thus, to avoid dismissal of the complaint, the plaintiff was required to show a justifiable excuse for the delay and a potentially meritorious cause of action ( seeCPLR 3216[e];Dominguez v. Jamaica Med. Ctr., 72 A.D.3d 876, 898 N.Y.S.2d 869;Picot v. City of New York, 50 A.D.3d 757, 757–758, 855 N.Y.S.2d 237;Serby v. Long Is. Jewish Med. Ctr., 34 A.D.3d 441, 824 N.Y.S.2d 119).The plaintiff failed to tender a justifiable excuse for his failure to comply with the 90–day notice ( seeBaczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 504, 655 N.Y.S.2d 848, 678 N.E.2d 460), or for his inordinate delay in the prosecution of this action ( seePicot v. City of New York, 50 A.D.3d at 758, 855 N.Y.S.2d 237;Ovchinnikov v. Joyce Owners Corp., 43 A.D.3d 1124, 1127, 843 N.Y.S.2d 345;Serby v. Long Is. Jewish Med. Ctr., 34 A.D.3d...