He v. Xiaokang Xu, 515998

• Decision Date: 30 July 2015
• Docket Number: 515998
• Citation: 2015 N.Y. Slip Op. 06385,130 A.D.3d 1386,16 N.Y.S.3d 90
• Parties: XIAOLING SHIRLEY HE, Appellant, v. XIAOKANG XU, Respondent.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 1386

16 N.Y.S.3d 90

2015 N.Y. Slip Op. 06385

XIAOLING SHIRLEY HE, Appellant

v.XIAOKANG XU, Respondent.

515998

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

July 30, 2015.

Xiaoling Shirley He, Clifton Park, appellant pro se.

Wayne P. Smith, Schenectady, for respondent.

Before: PETERS, P.J., McCARTHY, EGAN JR. and ROSE, JJ.

Opinion

EGAN JR., J.

Appeals (1) from an order of the Supreme Court (Drago, J.), entered December 28, 2012 in Schenectady County, which, among other things, denied plaintiff's motion to settle the record on appeal and granted defendant's cross motion for counsel fees, and (2) from the judgment entered thereon.

The instant appeal represents plaintiff's fifth appearance before this Court regarding issues surrounding the parties' 2005 divorce and the subsequent sale of the former marital residence (Xiaoling Shirley He v. Xiaokang Xu, 126 A.D.3d 1052, 4 N.Y.S.3d 723 [2015] ; He v. Realty USA, 121 A.D.3d 1336, 996 N.Y.S.2d 734 [2014], lv. dismissed and denied 25 N.Y.3d 1018, 10 N.Y.S.3d 510, 32 N.E.3d 946 [2015] ; Xiaokang Xu v. Xiaoling Shirley He, 77 A.D.3d 1083, 909 N.Y.S.2d 574 [2010] ; Xiaokang Xu v. Xiaoling Shirley He, 24 A.D.3d 862, 804 N.Y.S.2d 867 [2005], lv. denied 6 N.Y.3d 710, 813 N.Y.S.2d 46, 846 N.E.2d 477 [2006] ). Insofar as is relevant here, by order and judgment entered October 19, 2011, Supreme Court, among other things, granted defendant's motion to dismiss plaintiff's 10 separate complaints as procedurally defective. Plaintiff appealed and, in connection therewith, moved in this Court to enlarge the record on appeal to include five specific documents that, according to plaintiff, proved that defendant committed perjury in the context of the underlying matrimonial action and resulting appeals. This Court denied plaintiff's motion without prejudice to plaintiff making an application before Supreme Court to settle the record.

Plaintiff thereafter moved in Supreme Court to settle or, in her terms, enlarge the record, and defendant cross-moved for counsel fees and the imposition of sanctions. Supreme Court denied plaintiff's motion and granted defendant's cross motion to the extent of awarding defendant counsel fees and disbursements in the sum of $1,931.50. Plaintiff now appeals from the order denying her motion and awarding defendant counsel fees, as well as the judgment entered thereon.¹

We affirm. Consistent with the provisions of CPLR 5526, “the record on appeal from a final judgment shall consist of a notice of appeal, the judgment roll, the transcript or a statement in lieu of a transcript if there was a trial or hearing, any exhibits in the court of original instance, any other reviewable order and any opinion in the case” (Matter of Yanoff v. Commissioner of Educ. of State of N.Y., 64 A.D.2d 763, 763, 407 N.Y.S.2d 261 [1978] ; see Matter of Cicardi v. Cicardi, 263 A.D.2d 686, 686, 693 N.Y.S.2d 696 [1999] ). 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] ; accord Matter of Yanoff v. Commissioner of Educ. of State of N.Y., 64 A.D.2d at 763, 407 N.Y.S.2d 261 ; Matter of Cicardi v. Cicardi, 263 A.D.2d at 686, 693 N.Y.S.2d 696 ). As a result, “[d]ocuments or information that were not before [the trial court] cannot be considered by this Court on appeal” (Matter of De Cotis v. Malinoski, 252 A.D.2d 646, 647, 675 N.Y.S.2d 207 [1998] ; see Matter of Putnam, 68 A.D.3d 1614, 1615, 891 N.Y.S.2d 701 [2009] ; Matter of Wind Power Ethics Group [WPEG] v. Zoning Bd. of Appeals of Town of Cape Vincent, 60 A.D.3d 1282, 1283, 875 N.Y.S.2d 359 [2009] ; see also Latham Land I LLC v. TGI Friday's Inc., 124 A.D.3d 957, 958, 1 N.Y.S.3d 461 [2015] ). Here, Supreme Court expressly found that the five documents at issue were neither considered in conjunction with nor relevant to the issues that gave rise to its October 2011 order and judgment, which dismissed plaintiff's various complaints due to procedural defects. Under these circumstances, Supreme Court properly denied plaintiff's motion to settle the record to include such materials.

As a final matter, we discern no abuse of discretion in Supreme Court...