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Emco Tech Construction Corp. v. Pilavas

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 15, 2009

EMCO TECH CONSTRUCTION CORP., RESPONDENT,
v.
ANTHONY PILAVAS, ET AL., APPELLANTS, ET AL., DEFENDANTS.

In an action, inter alia, to recover damages for breach of a construction contract, the defendants Anthony Pilavas and Stoneytown Development, LLC, appeal from so much of a judgment of the Supreme Court, Nassau County (Warshawsky, J.), entered August 25, 2008, as, after a non-jury trial, and upon an order of the same court dated June 12, 2008, in effect, granting that branch of the plaintiff's motion pursuant to CPLR 4404(b) which was to set aside so much of a decision of the same court dated April 1, 2008, as awarded the plaintiff the principal sum of $3,413, is in favor of the plaintiff and against the defendant Anthony Pilavas in the principal sum of $128,028 and dismissed their counterclaims.

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.

REINALDO E. RIVERA, J.P., MARK C. DILLON, HOWARD MILLER and SHERI S. ROMAN, JJ.

(Index No. 17967/05)

DECISION & ORDER

ORDERED that the appeal is dismissed, with costs.

The defendants Anthony Pilavas and Stoneytown Development, LLC (hereinafter the appellants), failed to include the papers in support of, and in opposition to, the plaintiff's posttrial motion pursuant to CPLR 4404(b) in the record on appeal.

It is the appellants' obligation to assemble a proper record on appeal (see CPLR 5526; 22 NYCRR § 670.10.2[b]; Sebag v Narvaez, 60 AD3d 485). The appellants' reliance on CPLR 5528 is misplaced, as they did not utilize the appendix method when perfecting their appeal. In the present case, the record was inadequate because if failed to include all of the relevant documents that were before the Supreme Court (see Fernald v Vinci, 13 AD3d 333; Matter of Allstate Ins. Co. v Vargas, 288 AD2d 309). Appeals that are not based on a complete and proper record to enable this Court to render an informed decision on the merits must be dismissed (see Matter of Arcarian Sys, Ltd., 38 AD3d 649; Garnerville Holding Co. v IMC Mgt., 299 AD2d 450; Matison v County of Nassau, 290 AD2d 494).

RIVERA, J.P., DILLON, MILLER and ROMAN, JJ., concur.

20091215

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