New York State Court of Claims

New York State Court of Claims

MANNERS v. THE STATE OF NEW YORK, #2001-015-121, Claim No. 97487, Motion No. M-62764


Synopsis


Application for an order settling a record on appeal denied absent joint statement of the parties in lieu of a record or in the alternative submission to the Court of a complete copy of the proposed record to be settled.

Case Information

UID:
2001-015-121
Claimant(s):
CHARLES WILLIAM MANNERS, JR. Although claimant identifies himself herein as "Charles William Manners, II," the Court will continue to refer to claimant as Charles William Manners, Jr.
Claimant short name:
MANNERS
Footnote (claimant name) :
Although claimant identifies himself herein as "Charles William Manners, II," the Court will continue to refer to claimant as Charles William Manners, Jr.
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97487
Motion number(s):
M-62764
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Charles William Manners, Jr., Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: William E. Storrs, EsquireAssistant Solicitor General
Third-party defendant's attorney:

Signature date:
February 1, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

To the extent that claimant's submission to the Court may be deemed a motion for an order settling a record on appeal from this Court's trial decision dismissing the claim dated January 3, 2000 and the judgment entered thereon on January 31, 2000, it is denied without prejudice. Claimant filed with the Court a notice of motion dated November 24, 2000 which states:
"UPON THE AFFIDAVIT OF CHARLES WILLIAM MANNERS II, SWORN TO ON 24 NOVEMBER 2000, AND UPON, THE CLAIMANT WILL MOVE THIS COURT ON THE 06 DAY OF DECEMBER 2000, FOR AN ORDER:

** COURT ACCEPTANCE OF SUBMITTED RECORD ON APPEAL **

(AS IN COMPLYANCE WITH CLAIMANTS CASE INTENT, JUDGEMENT APPEAL).

Stipulation - letters attached (2) to prompt motion.

THE ABOVE-ENTITLED ACTION IS FOR:

FAIR LABOR STANDARD ACT COMPLIANCE FOR OVERTIME COMPENSATION ."
Attached to the notice of motion was claimant's affidavit of service upon the Attorney General's Office dated November 24, 2000; a photocopy of a letter addressed to David B. Klingaman, Chief Court Clerk; a photocopy of a letter dated November 24, 2000 addressed to Eliot Spitzer, New York State Attorney General; and a photocopy of a letter from Assistant Solicitor General William E. Storrs dated November 9, 2000. Despite the above quoted language contained in the notice of motion, claimant did not attach an affidavit of facts supporting the instant motion.

The letter of Assistant Solicitor General Storrs dated November 9, 2000 and his affirmation dated November 28, 2000 submitted in opposition to the "motion" provide the only facts underlying this request for relief. The Assistant Solicitor General avers that on October 25, 2000 claimant submitted to the Attorney General's office a "Record on Appeal" containing "no substantive documents other than the judgment, the decision, the petition, and some of the exhibits thereto." Claimant followed that submission with a letter dated November 3, 2000 requesting that the Attorney General execute an enclosed stipulation and hand deliver the document to the Appellate Division, Third Department. Claimant cited "Court rule 800.7B" as the basis for his request. By the aforementioned letter of November 9, 2000 Assistant Solicitor General Storrs declined to execute the certification of the proposed record on appeal since it was incomplete in that claimant had failed to include a copy of the trial transcript and any documents submitted by the State. This "motion" followed claimant's receipt of the Attorney General's declination to certify the proposed record on appeal.

Appellate practice in New York State is governed by articles 55 through 57 of the Civil Practice Law and Rules (CPLR) and by the rules of the particular court to whom the appeal is directed. The relevant rules are published in 22 NYCRR and are separately stated for each of the State's four judicial departments.

The content and form of a record on appeal are specified in CPLR Rule 5526. A rarely used alternative to the full record on appeal is available pursuant to CPLR 5527 where the parties can agree on a written statement framing the issues and showing how they arose and were decided by the Court. Where the parties have executed such a joint statement, Rule 5527 provides that the statement shall be presented to the Court from which the appeal is taken for approval as the record on appeal. The Court notes that claimant did not submit a statement pursuant to Rule 5527 in this case. Absent a joint statement in lieu of a record on appeal the instant motion is viewed as claimant's attempt to obtain the Court's settlement of the record upon the defendant's attorney's refusal to certify claimant's proposed record on appeal.

Certification of a record on appeal in the Appellate Division, Third Department, is governed by 22 NYCRR § 800.7. Paragraph (b) of § 800.7, cited by the claimant in his letter of November 3, 2000 provides:
(b) Single copy of record. When the appendix method is used, the single copy of the record must be stipulated to by the parties or, if the parties are unable to stipulate, settled by the judge before whom the proceedings were held. The procedure for settlement of a single copy record shall be in the manner provided by CPLR 5525(c), except that if respondent shall fail to make any proposed amendments or objections to the record within 10 days after service of it upon him, the record, certified as correct by appellant's or petitioner's attorney, shall be deemed correct and may be filed with an affirmation by appellant certifying to his compliance with the requirements of this section and respondent's noncompliance.
CPLR 5525 (c), referred to in § 800.7 (b), provides a mechanism for judicial settlement of a transcript where the parties cannot agree on their respective proposed amendments thereto.

The relief sought by the claimant cannot be granted in this case, however, since claimant has not provided the Court with the original or a copy of his proposed record on appeal and absent the submission of such documents there can be no settlement of the record by the Court. Although the denial of this "motion" is without prejudice, the Court recommends that following a review of CPLR Rule 5526 claimant should attempt to settle the record on appeal with defendant's counsel. If such attempt should prove unsuccessful he may then submit a properly supported motion for judicial settlement of the record pursuant to Rule 800.7(b).

Assuming arguendo that claimant intended this motion as a request for relief from the submission of a transcript on the appeal pursuant to CPLR 5525 (b), which he cited in his letter to Attorney General Spitzer, it likewise is denied on the ground that claimant has failed to submit an affidavit or otherwise allege that he is relying "only upon exceptions to rulings on questions of law made after the case is finally submitted" as required by paragraph (b) of Rule 5525.


February 1, 2001
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion sworn to November 24, 2000, with exhibits;
  2. Affirmation of William E. Storrs dated November 28, 2000.