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In re Jeanette T. (Anonymous)

Supreme Court of New York, Second Department

October 2, 2013

In the Matter of Jeanette T. (Anonymous). And Vivian T. (Anonymous), respondent; Linda B. (Anonymous), appellant. Index No. 100088/10

Fern J. Finkel (Godosky & Gentile, P.C., New York, N.Y. [Anthony P. Gentile], of counsel), for respondent.

Lee M. Nigen, Brooklyn, N.Y., for appellant.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, JEFFREY A. COHEN, JJ.

DECISION & ORDER

In a consolidated guardianship proceeding pursuant to Mental Hygiene Law article 81 and action to recover damages for conversion and negligence, the cross petitioner/plaintiff, Linda B., appeals from an order of the Supreme Court, Kings County (Baily-Schiffman, J.), dated June 27, 2012, which granted the motion of the petitioner/defendant, Vivian T., in effect, pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against her.

ORDERED that the appeal is dismissed, with costs.

The appellant is obligated to assemble a proper record on appeal, and such record must contain all of the relevant papers that were before the Supreme Court so that this Court is able to render an informed decision on the merits (see Barretti v Solucorp Indus., Ltd., 102 A.D.3d 642; Rubio-Modica v Modica, 100 A.D.3d 979; Gaffney v Gaffney, 29 A.D.3d 857). " Appeals that are not based upon complete and proper records must be dismissed'" (Aurora Indus., Inc. v Halwani, 102 A.D.3d 900, 901, quoting Garnerville Holding Co. v IMC Mgt., 299 A.D.2d 450, 450; see Salem v Mott, 43 A.D.3d 397).

Here, the record on appeal is inadequate, as the appellant failed to include the affidavit of the petitioner/defendant, Vivian T., which Vivian T. submitted in support of her motion, in effect, pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against her. In her affirmation submitted in opposition to the motion, the appellant discussed the affidavit in great detail and challenged many assertions apparently set forth therein. Moreover, the Supreme Court considered Vivian T.'s affidavit in rendering its determination in the order appealed from. Under these circumstances, the record is inadequate to enable this Court to render an informed decision on the merits and the appeal must be dismissed (see CitiMortgage, Inc. v Thorpe, 87 A.D.3d 1048).

DILLON, J.P., CHAMBERS, ROMAN and COHEN, JJ., concur.


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