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

536
CA 12-02077
PRESENT: SCUDDER, P.J., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ.


ALBERT KILLIAN AND MELISSA KILLIAN,
PLAINTIFFS-RESPONDENTS,

                     V                               MEMORANDUM AND ORDER

KEVIN HEIMAN, DEFENDANT-APPELLANT.


BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR
DEFENDANT-APPELLANT.

CELLINO & BARNES, P.C., ROCHESTER (RICHARD P. AMICO OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Wyoming County (Mark H.
Dadd, A.J.), entered August 17, 2011. The order, insofar as appealed
from, denied the motion of defendant to dismiss the amended complaint.

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

     Memorandum: Defendant appeals from an order that, inter alia,
denied his motion to dismiss the amended complaint with prejudice on the
ground that one of the plaintiffs failed to appear at trial for a
scheduled cross-examination. Defendant’s contention that Supreme Court
abused its discretion in denying that motion involves matters outside the
record on appeal. We therefore are unable to determine the merits of
defendant’s contention, and defendant, “as the appellant, . . . must
suffer the consequences” of submitting an incomplete record (Matter of
Santoshia L., 202 AD2d 1027, 1028; see Matter of Rodriguez v Ward, 43
AD3d 640, 641).




Entered:   April 26, 2013                       Frances E. Cafarell
                                                Clerk of the Court
