Appeal from an order of the Civil Court the City of New York, Queens County (Anna Culley, J.), entered March 25, 2006. The order denied plaintiff's motion to restore the case to the calendar.

Order affirmed without costs.

On or about February 14, 2006, plaintiff moved to restore the instant case to the calendar. An affirmation of service, signed by plaintiff's counsel, states that she served the motion upon defendant's attorney by facsimile. On the return date of the motion,
defendant failed to appear. By order entered March 25, 2006, the court denied the motion, stating the following:
"Plaintiff's motion to restore is denied as plaintiff has failed to show that the defendant agreed to accept service of papers via facsimile. Plaintiff fails to show that defense counsel provided a designated facsimile number for the purpose of service by fax or that defendant designated a facsimile telephone number in the address block of papers served or filed in the course of the action (see CPLR 2103[b][5])."

On appeal, plaintiff contends that, on the return date of her motion, the judge granted her motion in open court, based upon the default of defendant. However, this court is bound by the record on appeal which contains the foregoing order in proper form and signed by the judge (see [*2]CPLR 2219 [a]). Despite plaintiff's contentions of irregularities in connection with the order, this court cannot consider matters outside of the record.

Moreover, the court below correctly found that plaintiff failed to prove that the motion was properly served. Plaintiff does not point to any paper served or filed with the court by defendant which includes a facsimile number for defendant's attorney (see CPLR 2103 [b] [5]). We note that even the correspondence submitted by plaintiff upon this appeal as proof of defendant's consent to service by facsimile does not contain the
same facsimile number listed by plaintiff's attorney on her affirmation of service for the motion. Accordingly, plaintiff's motion was properly denied.

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: November 29, 2007