Klein v. Richs Towing

• Docket Number: 2020–04961,Index No. 35543/19
• Decision Date: 22 February 2023
• Citation: 213 A.D.3d 920,184 N.Y.S.3d 156
• Parties: Moshe KLEIN, etc., appellant, v. RICHS TOWING, et al., defendants, R & S Jamieson Auto Body, Inc., etc., et al., respondents.
• Court: New York Supreme Court — Appellate Division

213 A.D.3d 920

184 N.Y.S.3d 156

Moshe KLEIN, etc., appellant,

v.RICHS TOWING, et al., defendants,R & S Jamieson Auto Body, Inc., etc., et al., respondents.

2020–04961

Index No. 35543/19

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

Submitted—December 8, 2022

February 22, 2023

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.

COLLEEN D. DUFFY, J.P., JOSEPH J. MALTESE, LINDA CHRISTOPHER, LARA J. GENOVESI, JJ.

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 A.D.3d 1007, 1010, 165 N.Y.S.3d 115 ; see Wilmington Trust Company v. Buscemi, 207 A.D.3d 503, 505, 169 N.Y.S.3d 544 ; Eleven Stars, LLC v. Central Baptist Church, 206 A.D.3d 884, 884–885, 168 N.Y.S.3d 699 ; P.B. #7, LLC v. 231 Fourth Ave. Lyceum, LLC, 167 A.D.3d 1028, 1029, 91 N.Y.S.3d 164 ). 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....