Mirisoloff v. Monroe

16 A.D.3d 1161, 791 N.Y.S.2d 255, 2005 N.Y. App. Div. LEXIS 2822

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 18, 2005
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Cayuga County (Peter E. Corning, A.J.), entered April 14, 2004. The order granted plaintiffs’ motion to compel depositions and denied defendants’ cross motion for an order staying the action or, alternatively, to compel discovery.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied that part of defendants’ cross motion for an order pursuant to CPLR 2201 and the Soldiers’ and Sailors’ Civil Relief Act of 1940 (50 USC Appendix § 501 et seq.) staying the action while defendant Aaron E Monroe is allegedly engaged in active military service. Defendants were required to establish in support thereof “the manner in which current military duty requirements materially affect [Monroe’s] ability to appear and stating a date when [Monroe] will be available to appear” (§ 522 [b] [2] [A]). In addition, they were required to submit a “letter or other communication from [Monroe’s] commanding officer stating that [Monroe’s] current military duty prevents appearance and that military leave is not authorized for [Monroe] at the time of the letter” (§ 522 [b] [2] [B]). Defendants failed to comply with either of those requirements.

Defendants further contend that the court erred in denying that part of their cross motion seeking to compel discovery. They failed to include in the record on appeal the reply affirmation of plaintiffs’ attorney in response to the cross motion and certain exhibits that were reviewed by the court in determining the cross motion, and thus we are unable to consider the merits of their contention on the record before us (see Klein v Mammarello, 289 AD2d 1095 [2001]). Present—Green, J.P., Scudder, Kehoe, Smith and Hayes, JJ.