New York State Court of Claims

New York State Court of Claims

SUPENSKY v. THE STATE OF NEW YORK, #2003-031-009, Claim No. 96861, Motion No. M-66368


Synopsis


Claimant's motion to settle record on Appeal. The portion of the transcript constituting a decision by the court is included in the record. The balance of the transcript cannot be included as it does not consist of testimony, but rather is colloquy alone.

Case Information

UID:
2003-031-009
Claimant(s):
JAMES D. SUPENSKY
Claimant short name:
SUPENSKY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96861
Motion number(s):
M-66368
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
LIPSITZ, GREEN, FAHRINGER, ROLL, SALISBURY & CAMBRIA LLPBY: JOHN A. COLLINS, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: RUPP, BAASE & PFALZGRAF, LLC R. ANTHONY RUPP, III, ESQ.
Third-party defendant's attorney:

Signature date:
March 3, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 4, were read on motion by Claimant to settle the record on appeal:
1. Notice of Motion, dated January 27, 2003;
2. Affidavit of John A. Collins, Esq., sworn to January 27, 2003, with attached exhibits;
3. Affidavit of R. Anthony Rupp, III, Esq., sworn to February 20, 2003; and
4. Filed papers: Claim, Answer. Claimant was injured on June 19, 1996. He filed his claim on August 26, 1997. Judge NeMoyer tried the issue of liability on November 19, 2001, and a judgment finding the State 100% liable was signed on May 29, 2002. After the trial and prior to the issuance of the interlocutory judgment, the parties were before Judge NeMoyer litigating matters related to the contents of their post-trial briefs. In sum and substance, Defendant moved to strike part of Claimant's submission and Claimant cross-moved to reopen the proof.

Judge NeMoyer heard oral argument on the motion and cross-motion on February 6, 2002. Also on that day, and immediately following the conclusion of the argument, he rendered a decision from the bench. The judge granted Defendant's motion and denied Claimant's cross-motion. The decision was memorialized in an order dated February 20, 2002. Claimant filed a Notice of Appeal regarding the February 20, 2002 order on March 19, 2002. Claimant submitted a proposed Table of Contents for the Record on Appeal to Defendant for its approval; the approval was not forthcoming.

Claimant has moved for an order of this Court settling the record pursuant to 22 NYCRR 1000.4(a)(1)(ii). The sole issue is whether or not the complete transcription, that is 10 pages, is to be included in the Record on Appeal.

Pursuant to 22 NYCRR 1000.4(a)(2), the contents of the Record on Appeal include:
". . . the notice of appeal with proof of service and filing; the order or judgment from which the appeal is taken; the decision, if any, of the court granting the order or judgment; the judgment roll, if any; the pleadings of the action or proceeding; the corrected transcript of the action or proceeding or statement in lieu of transcript, if any; all necessary and relevant motion papers; and, to the extent practicable, all necessary and relevant exhibits (see CPLR 5526) . . ."
Therefore, the inclusion of the transcript in question in the Record on Appeal is appropriate if it can be characterized as either a decision of the court or as the transcript of the action or proceeding.

While both parties concede there is a dearth of cases regarding this issue[1], there is some illuminating discussion in Siegel, NY Prac [3rd ed]. Professor Siegel defines a transcript as the "typed-out manuscript of testimony and other colloquy of a trial or hearing. . ." (§ 537, p. 889). Further, he opines that the inclusion of a transcript in a record on appeal where it is an order, and not a judgment, being appealed from, is appropriate "in the infrequent instances in which it was not decided on papers alone but required an open-court hearing." Id. It appears that the transcript of the action or proceeding embodies the taking of testimony (§ 538); colloquy alone will not suffice. The transcript at issue may not be included in the record on this basis. But does this particular transcript constitute the decision of the court and still merit inclusion in the record?

Clearly, part of this transcript constitutes a decision of the court and must be included in the record. While I am tempted to decide that the balance of the transcript containing the parties' oral argument is part and parcel of the Court's decision, I am persuaded by the very decision the Court rendered and an analogy presented to me in court that oral argument by the attorneys is the same as written argument made in legal briefs; not evidence to be considered by a court nor to be included in a record on appeal.

For the reasons stated above, it is hereby:

ORDERED, that Claimant's motion to settle the Record on Appeal is resolved as follows: those portions, and only those portions, of the transcript which encompass the decision of the Court (page 8 from line 18 through page 10), shall be included in the Record on Appeal.

March 3, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims



[1]Defendant cites Klopfle v New York State Thruway Auth., 172 AD2d 1073 as possible precedent. While that case did deal with a transcript of oral argument on a motion, the appellate court rejected its inclusion in defendant's brief on appeal because it was not included in the stipulated record on appeal.