Quezada v. Mensch Management Inc.

89 A.D.3d 647, 933 N.Y.2d 276

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 29, 2011
• Status: Published

Opinion

Dismissal of the appeal is warranted because Taveras failed to assemble a proper appellate record. Notably, the order being appealed from explicitly referenced Supreme Court’s reliance upon the affirmation of plaintiffs’ counsel to find that Taveras failed to appear for a court-ordered deposition on March 22, 2010. The attorney’s affirmation was a necessary paper upon which the subject “order was founded” and should have been included in the record (CPLR 5526; Rules of App Div, 1st Dept [22 NYCRR] § 600.10; see Lynch v Consolidated Edison, Inc., 82 AD3d 442 [2011]; UBS Sec. LLC v Red Zone LLC, 77 AD3d 575, 579 [2010], lv denied 17 NY3d 706 [2011]).

Were we not dismissing the appeal, we would find that Taveras’s answer was properly stricken. The limited record demonstrates that Taveras’s failure to appear for the March 2010 deposition was the latest in a series of failures by Taveras to comply with court orders directing discovery (see e.g. Henderson-Jones v City of New York, 87 AD3d 498, 504 [2011]; Elias v City of New York, 87 AD3d 513, 514 [2011]). Concur— Saxe, J.E, Friedman, Renwick, DeGrasse and Freedman, JJ.