Milton B. Shapiro v Deborah Shapiro Kurtzman

Shapiro v Kurtzman 2006 NY Slip Op 06279 [32 AD3d 511] August 22, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, October 11, 2006

Milton B. Shapiro, Appellant,
v
Deborah Shapiro Kurtzman, Respondent, et al., Defendants.

—[*1]In an action, inter alia, to recover the proceeds of certain loans, the plaintiff appeals from an order of the Supreme Court, Rockland County (Sherwood, J.), dated July 11, 2005, which denied his motion pursuant to CPLR 5526 to include two orders entered in a related action into the record on appeal from an order entered in the instant action.

Ordered that the order is affirmed, with costs.

The plaintiff appealed from an order of the Supreme Court, Rockland County (Sherwood, J.), dated July 13, 2004, granting the respondent's motion to strike the pleadings and to dismiss the second amended complaint insofar as asserted against her for failure to comply with discovery demands and court-ordered discovery (see Shapiro v Kurtzman, — AD3d — [decided herewith]). In making that determination, the Supreme Court considered the respondent's notice of motion and affirmation in support of the motion, the plaintiff's affidavit in opposition, and the respondent's reply affirmation.

The plaintiff made a motion before the Supreme Court to include two prior orders of that court entered October 3, 2002 and October 4, 2002, respectively, into the record on appeal from the order dated July 13, 2004. Those orders were made in a separate action brought by the [*2]respondent against, among others, the plaintiff, entitled Shapiro v Kurtzman, under Rockland County index No. 62/02. The Supreme Court denied that motion. This appeal ensued.

As the two orders which the plaintiff sought to include into the record were not before the Supreme Court when it rendered its determination from which the appeal from the order dated July 13, 2004 was taken, they were properly excluded from the record on that appeal (see CPLR 5526; 22 NYCRR 800.5; Matter of Dyno v Village of Johnson City, 255 AD2d 737 [1998]; People v Hoppe, 239 AD2d 777 [1997]). Schmidt, J.P., Santucci, Mastro and Lifson, JJ., concur.