Eleven Stars, LLC v Central Baptist Church

Eleven Stars, LLC v Central Baptist Church 2022 NY Slip Op 04009 Decided on June 22, 2022 Appellate Division, Second 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 June 22, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
SHERI S. ROMAN
JOSEPH J. MALTESE
WILLIAM G. FORD, JJ.
2019-08979
(Index No. 505484/15)

[*1]Eleven Stars, LLC, respondent,

v

Central Baptist Church, appellant.

Pacheco & Lugo, PLLC (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Kenneth J. Gorman], of counsel), for appellant.

Abrams Fensterman, LLP, White Plains, NY (Robert A. Spolzino and David A. House of counsel), for respondent.

DECISION & ORDER

In an action pursuant to RPAPL article 6 to recover possession of real property, the defendant appeals from an order of the Supreme Court, Kings County (Sylvia G. Ash, J.), dated June 13, 2019. The order, insofar as appealed from, upon reargument, adhered to a prior determination in an order of the same court dated October 26, 2017, denying the defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the appeal is dismissed, with costs.

"CPLR 5526 requires that a record on appeal contain the papers and exhibits upon which the order appealed from was founded. It is the obligation of the appellant to assemble a proper record on appeal" (Bruzzese v Bruzzese, 203 AD3d 1007, 1010; see 126 Henry St., Inc. v Cater, 197 AD3d 598, 601; Wells Fargo Bank, N.A. v Bullen, 195 AD3d 881; Matter of Petrosino v Petrosino, 192 AD3d 1037; Babayev v Kreitzman, 168 AD3d 655, 655-656). Here, the defendant argues that, upon reargument, the Supreme Court should have granted its prior cross motion for summary judgment dismissing the complaint. However, the record on appeal does not contain the pleadings or the papers submitted in support of and in opposition to the defendant's coss motion. Since these omissions have rendered meaningful review of the court's order "virtually impossible,"

dismissal of the appeal is the appropriate disposition (Babayev v Kreitzman, 168 AD3d at 656 [internal quotation marks omitted]; see 126 Henry St., Inc. v Cater, 197 AD3d at 601).

DUFFY, J.P., ROMAN, MALTESE and FORD, JJ., concur.

2019-08979 DECISION & ORDER ON MOTION

Eleven Stars, LLC, respondent, v Central Baptist

Church, appellant.

(Index No. 505484/15)

Motion by the respondent, inter alia, to dismiss the appeal on the ground that no appeal lies from an order denying reargument and to dismiss the appeal on the ground that no appeal lies as of right from an order that is not the result of a motion made on notice and leave to appeal has not been granted. By decision and order on motion dated October 23, 2020, those branches of the motion were held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the branches of the motion which are to dismiss the appeal are denied.

DUFFY, J.P., ROMAN, MALTESE and FORD, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court