2001 Real Estate Space Catalyst, Inc. v. Campeau Corp. (U.S.), Inc.

148 A.D.2d 315, 538 N.Y.S.2d 531, 1989 N.Y. App. Div. LEXIS 2352

Opinion

Order of the Supreme Court, New York County (Beatrice Shainswit, J.), entered on February 9, 1988, which granted the motion by third-party plaintiff for summary judgment pursuant to CPLR 3212 and denied the cross motion by third-party defendant for summary judgment, is unanimously affirmed, with costs and disbursements.

The Supreme Court properly granted the motion by third-party plaintiff for summary judgment pursuant to CPLR 3212 and denied the cross motion by third-party defendant for the same relief. However, it should be noted that in connection with its appeal, third-party defendant prepared a record which selectively failed to include many motion papers and supporting exhibits which had been submitted by the opposing party in the Supreme Court and were an integral part of the record before that court. In that regard, CPLR 5526 provides that the "record on appeal from an interlocutory judgment or any order shall consist of the notice of appeal, the judgment or order appealed from, the transcript, if any, the papers and other exhibits upon which the judgment or order was founded and any opinions in the case” (emphasis added). The omission from the appeal record by third-party defendant of much of the record before the Supreme Court, specifically documents filed by third-party plaintiff, is not only in violation of the statute but is highly unprofessional as well. It appears that third-party defendant was only interested in having this court examine fully its own arguments and not those presented by the other side. Accordingly, third-party plaintiff was compelled to submit its own extensive supplemental record on appeal, which is nearly three times the length of the original record on appeal. The failure by third-party defendant to file a full and complete record can only be deplored. Concur — Sullivan, J. P., Asch, Milonas, Ellerin and Wallach, JJ.