Quezada v Mensch Mgt. Inc.

Quezada v Mensch Mgt. Inc. 2011 NY Slip Op 08658 Decided on November 29, 2011 Appellate Division, First Department 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.

Decided on November 29, 2011
Saxe, J.P., Friedman, Renwick, DeGrasse, Freedman, JJ.
6192N 350516/08

[*1]Eliza Quezada, etc., et al., Plaintiffs-Respondents,

v

Mensch Management Inc., Defendant, Julio Taveras, Defendant-Appellant.




Morici & Morici, LLP, Garden City (Emily Ashman of
counsel), for appellant.
Trolman, Glaser & Lichtman, P.C., New York (Michael T.
Altman of counsel), for respondents.

Appeal from order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered June 11, 2010, which, inter alia, granted plaintiffs' motion to strike the answer of defendant Taveras for failure to comply with a prior order of the court, unanimously dismissed, without costs, for failure to perfect the appeal in accordance with the CPLR and the rules of this Court.

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 [*2]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]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 29, 2011

CLERK