Mergl v. Mergl

19 A.D.3d 1146, 796 N.Y.S.2d 823, 2005 N.Y. App. Div. LEXIS 6381

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 10, 2005
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court, Erie County (John E O’Donnell, J.), entered April 19, 2004 in a divorce action. The judgment, insofar as appealed from, awarded defendant maintenance and counsel fees.

It is hereby ordered that said appeal be and the same hereby is unanimously dismissed without costs.

Memorandum: Plaintiff appeals from a judgment of divorce that, inter alia, granted defendant durational maintenance and counsel fees. The appeal must be dismissed based on plaintiffs failure to provide an adequate record. Our rules provide that “[t]he complete record on appeal shall include, in the following order: the notice of appeal with proof of service and filing; the order or judgment from which the appeal is taken; the decision, if any, of the court granting the order or judgment; the judgment roll, if any; the pleadings of the action or proceeding; the corrected transcript of the action or proceeding or statement in lieu of transcript, if any; all necessary and relevant motion papers; and, to the extent practicable, all necessary and relevant exhibits” (22 NYCRR 1000.4 [a] [2]; see also CPLR 5526). Here, there are no pleadings, no financial affidavits, and no exhibits that establish the parties’ respective incomes, and we are thus unable to determine whether Supreme Court’s award of maintenance or counsel fees is error as alleged.

“It is the obligation of the appellant to assemble a proper record on appeal. The record must contain all of the relevant papers that were before the Supreme Court” (Singh v Getty Petroleum Corp., 275 AD2d 740, 740 [2000]). Where a record on appeal does not contain documents submitted to the trial court and the absence of those documents renders meaningful appellate review impossible, “dismissal of [the] appeal is an appropriate disposition” (id.; see also Patel v Patel, 270 AD2d 241 [2000], appeal dismissed 95 NY2d 899 [2000]). Present—Pigott, Jr., P.J., Green, Gorski, Smith and Hayes, JJ.