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Aurora Industries, Inc. v. Halwani

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


March 30, 2010

AURORA INDUSTRIES, INC., ET AL., RESPONDENTS,
v.
SIMON HALWANI, APPELLANT.

In an action, inter alia, to recover damages for conversion, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Held, J.), dated April 7, 2008, as denied that branch of his motion which was summary judgment on the issue of liability on his counterclaims and granted that branch of the plaintiffs' cross motion which was for summary judgment dismissing his 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.

FRED T. SANTUCCI, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS and SANDRA L. SGROI, JJ.

(Index No. 6450/05)

DECISION & ORDER

ORDERED that the matter is remitted to the Supreme Court, Kings County, to hear and report in accordance herewith, and the appeal is held in abeyance in the interim.

The plaintiffs contend that the appeal should be dismissed since the defendant failed to compile an adequate record on appeal, omitting certain exhibits which were submitted in opposition to the defendant's motion and in support of the plaintiff's cross motion. The defendant contends that the Supreme Court rejected those exhibits. The original papers which were subpoenaed from the Supreme Court do not include those exhibits. However, the order appealed from does not indicate that the Supreme Court rejected any exhibits. Rather, the order states, "I have read the various submissions and exhibits submitted to this court by each side." Under these circumstances, we cannot determine whether the defendant has compiled an adequate record on appeal so as to permit review of the merits of the motion and cross motion (see Fernald v Vinci, 13 AD3d 333, 334; Garnerville Holding Co. v IMC Mgt., 299 AD2d 450). Accordingly, we remit the matter to the Supreme Court, Kings County, to hear and report as to the exhibits it considered in determining the motion and cross motion, and the appeal is held in abeyance in the interim.

SANTUCCI, J.P., DICKERSON, CHAMBERS and SGROI, JJ., concur.

20100330

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