        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1119
CA 15-00492
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND VALENTINO, JJ.


RESETARITS CONSTRUCTION CORPORATION,
PLAINTIFF-APPELLANT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

CITY OF NIAGARA FALLS,
DEFENDANT-RESPONDENT-APPELLANT.


LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOSEPH J. MANNA OF COUNSEL),
FOR PLAINTIFF-APPELLANT-RESPONDENT.

CRAIG H. JOHNSON, CORPORATION COUNSEL, NIAGARA FALLS (THOMAS M.
O’DONNELL OF COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court,
Niagara County (Timothy J. Walker, A.J.), entered July 21, 2014. The
order, among other things, denied plaintiff’s motion for summary
judgment and denied defendant’s cross motion for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this action to recover damages for breach of
contract arising from a construction project, plaintiff appeals and
defendant cross-appeals from an order that denied their respective
motion and cross motion seeking, inter alia, summary judgment. We
affirm for reasons stated in the decision at Supreme Court. We write
only to address plaintiff’s contentions regarding the denial of that
part of its motion seeking to preclude defendant from presenting
certain evidence at trial based on defendant’s failure to comply with
prior discovery orders. The court concluded that defendant had
submitted a letter and other documents in response to the prior
discovery orders demonstrating that defendant had complied with the
prior orders. Plaintiff failed to include those documents in the
record on appeal, however, and we thus are unable to review
plaintiff’s present contention that the court erred in determining
that the documents were sufficient to establish defendant’s compliance
with the prior orders. Plaintiff, as the party raising this issue on
its appeal, “submitted this appeal on an incomplete record and must
suffer the consequences” (Matter of Santoshia L., 202 AD2d 1027, 1028;
see Killian v Heiman, 105 AD3d 1459, 1459-1460; Matter of Rodriguez v
                               -2-                 1119
                                              CA 15-00492

Ward, 43 AD3d 640, 641).




Entered:   November 13, 2015         Frances E. Cafarell
                                     Clerk of the Court
