County of Jefferson v. Onondaga Dev., LLC

2018 NY Slip Op 4258

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 8, 2018
• Docket: Mot. 411/17 CA 16-01124
• Status: Published

Opinion

County of Jefferson v Onondaga Dev., LLC (2018 NY Slip Op 04258)

County of Jefferson v Onondaga Dev., LLC

2018 NY Slip Op 04258

Decided on June 8, 2018

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 8, 2018
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ. (Filed
MOTION NO. (411/17) CA 16-01124.

[*1]COUNTY OF JEFFERSON, PLAINTIFF-RESPONDENT,

v

ONONDAGA DEVELOPMENT, LLC, DEFENDANT-APPELLANT.

MEMORANDUM AND ORDER

Motion for reargument be and the same hereby is granted in part and, upon reargument, the memorandum and order entered June 16, 2017 (151 AD3d 1793) is amended by deleting the ninth paragraph of the memorandum and replacing it with the following paragraph:

To the extent that the County contends that the encroachment was permissible under the doctrine of lateral support, the County's submissions in support of its motion do not contain that contention, and thus that contention is not properly before us (see Ciesinski, 202 AD2d at 985). Although the County asserts that it raised that contention in the memoranda of law that it submitted in support of its motion, we note that the memoranda of law are not part of the record on appeal, and the County failed to object to defendant's submitted appendix and failed to submit its own appendix containing those memoranda (see CPLR 5528 [b]; 22 NYCRR 1000.4 [d] [2] [ii]; Lyndaker v Board of Educ. of W. Can. Val. Cent. Sch. Dist., 129 AD3d 1561, 1564-1565 [4th Dept 2015]; see generally Zawatski v Cheektowaga-Maryvale Union Free Sch. Dist., 261 AD2d 860, 860 [4th Dept 1999], lv denied 94 NY2d 754 [1999]).

June 8, 2018.)