Opinion
03-01-2016
Mario MARTINEZ, as Administrator of the Estate of Margarita Martinez, Deceased, etc., Plaintiff–Appellant, v. PREMIUM LAUNDRY CORPORATION, Defendant–Respondent.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Beth S. Gereg of counsel), for appellant. Martin Fallon & Mullé, LLP, Huntington (Stephen P. Burke of counsel), for respondent.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Beth S. Gereg of counsel), for appellant.
Martin Fallon & Mullé, LLP, Huntington (Stephen P. Burke of counsel), for respondent.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered on or about August 15, 2014, which granted defendant's oral application to dismiss the complaint, unanimously reversed, on the law, without costs, and the motion denied.
Plaintiff's failure to assemble a proper record (see CPLR 5526 ), does not warrant dismissal of the appeal. Defendant has not identified any material information omitted from the record on appeal that is relevant to a determination of the issues presented, and the record on appeal is sufficiently complete to address the merits (see Sanacore v. Sanacore, 74 A.D.3d 1468, 1469, 904 N.Y.S.2d 234 [3d Dept.2010] ; see also Bennett v. Gordon, 99 A.D.3d 539, 952 N.Y.S.2d 166 [1st Dept.2012] ).
Contrary to defendant's contention, its oral application was not a motion to dismiss pursuant to CPLR 3211(a)(5) on the ground of release, but was, in effect, an untimely motion for summary judgment (see Samuels v. Consolidated Edison Co. of N.Y., Inc., 96 A.D.3d 685, 946 N.Y.S.2d 864 [1st Dept.2012] ). The court should not have entertained the oral application, since it was not supported by any motion papers, no formal motion was made on notice to plaintiff, and the application was made after jury selection had been completed (see Williams v. Naylor, 64 A.D.3d 588, 886 N.Y.S.2d 30 [2d Dept.2009] ). The oral application, which was made more than seven months after the 120–day statutory deadline, was also made without any showing of "good cause" for the delay (see Brill v. City of New York, 2 N.Y.3d 648, 652, 781 N.Y.S.2d 261, 814 N.E.2d 431 [2004] ).
ACOSTA, J.P., RENWICK, ANDRIAS, MOSKOWITZ, JJ., concur.