New York State Court of Claims

New York State Court of Claims

BRADY v. THE STATE OF NEW YORK, #2007-028-543, Claim No. NONE, Motion No. M-72717


Synopsis


Motion to settle the record on appeal (CPLR 5526) is denied because Claimant failed to submit an original or copy of all submissions

Case Information

UID:
2007-028-543
Claimant(s):
KEVIN PATRICK BRADY
Claimant short name:
BRADY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-72717
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
KEVIN PATRICK BRADY, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERAL
BY: Owen Demuth, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 3, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Claimant’s motion to settle the record on appeal:

1. Notice of Motion and Supporting Affidavit of Kevin Patrick Brady, pro se;


2. “Table of Contents” submitted by Kevin Patrick Brady, pro se; and


3. Letter of Owen Demuth, AAG.


Filed papers: Decision and Order, Motion No. M-71491, Oct. 4, 2006, Sise, P.J.


In a Decision and Order dated October 4, 2006, this Court denied Movant’s motion for permission to file a late claim on the ground that it lacked legal merit. The following month, Movant filed a Notice of Appeal, seeking to have that decision reviewed by the Appellate Division, Fourth Department. He now moves for an order certifying, or settling, the record on appeal.

The record on appeal must contain all of the relevant papers that were before the trial court (CPLR 5526; Mergl v Mergl (4 Dept 2005) 19 AD3d 1146 [4th Dept 2005], rearg denied

21 AD3d 1442). Claimant has appealed to the Appellate Division, Fourth Department, and pursuant to 22 NYCRR § 1000.4, the parties to an action or proceeding may stipulate as to the contents of the record on appeal or, if agreement cannot be reached, the appellant may apply to the court from which the appeal is being taken to settle the record (subd [a][1][ii]). The regulation further provides that the complete record shall consist of the following:

1) the notice of appeal with proof of service and filing;

2) the order or judgment from which the appeal is taken;

3) the decision, if any, of the court granting the order or judgment; the judgment roll, if any;

4) the pleadings of the action or proceeding;

5) the corrected transcript of the action or proceeding or statement in lieu of transcript, if any;

6) all necessary and relevant motion papers; and, to the extent practicable; and

7) all necessary and relevant exhibits (see CPLR 5526).

The record must also include a description of the action that is required by CPLR 5531,[1] and either the stipulation to the complete record signed by all parties or the order settling the record.

Claimant’s submissions, specifically the document captioned “Table of Contents,” contains a copy of the Notice of Appeal and a copy of the Decision and Order from which the appeal is taken. Because the decision related to a motion for permission to late file, there were neither pleadings nor any proceeding that resulted in a transcript. Apparently missing from the Table of Contents are 1) an affidavit of service establishing service of the Notice of Appeal[2] and 2) a description of the action as mandated by CPLR 5526 and outlined in footnote 1. In addition to the above, Claimant has included a 102-page document captioned “Precalendar Statement,” which appears to be his argument on appeal and which may contains a few of the pages or documents that were previously submitted on Motion No. M-74191.

Items 6 and 7 of the listing contained in 22 NYCRR §1000.4 require the record on appeal to contain all necessary and relevant motion papers and to the extent practicable all necessary and relevant exhibits. Although a few of the submissions made in Motion No. M74191 may be contained in the “Precalendar Statement,” Claimant has failed to submit the original or a copy of all submissions and “absent the submission of such documents there can be no settlement of the record by the Court” (Manners v State of New York, UID #2001-015-121, Claim No. 97487, Motion No. M-62764 [Ct Cl February 1, 2001] Collins, J.; see also Weeden v Ark, 2 AD3d 1280 [4th Dept 2003] [“While ‘[e]very appellant has a clear legal right to settlement of the record’ [Matter of Lavar C., 185 AD2d 36, 39, 592 NYS2d 535], that principle presupposes that an appellant has submitted a proposed record in compliance with CPLR 5526 and 22 NYCRR 1000.4]).

To aid Claimant in compiling an accurate record, the Court will list the documents that are in its file on Motion No. M-71491:
  1. Notice of Motion
filed March 24, 2006 (5 pages)

  1. Claim # _________ For Intentional and Negligent Torts, Including Constitutional, for Unauthorized Prosecution, Wrongful Convictions and Incarcerations, Fraud on the Courts, Deprivation of Hearings and Appeals, and Other Violations of Claimants State and Federal Rights
filed March 24, 2006 (62 pages)

This document was accepted as the Proposed Claim.

  1. Document entitled “Incorporated” and captioned for the District Court of the Western District of New York
filed March 24, 2006 (96 pages)

  1. Letter from Claimant to Chief Clerk Robert DeCataldo
received March 28, 2006 (22 pages)

  1. Letter from Claimant to Chief Clerk Robert DeCataldo
received March 30, 2006 (4 pages)

  1. Letter from Claimant to Chief Clerk Robert DeCataldo
received March 30, 2006 (26 pages)

  1. Notice of Motion (for leave to amend claims)
filed April 13, 2006 (10 pages)

  1. Letter from Claimant to Judge Sise
received April 13, 2006 (9 pages)

  1. Motion to Include
filed April 13, 2006 (9 pages)

  1. Affirmation of James L. Gelormini, AAG
filed April 19, 2006 (10 pages with annexed Exhibits)

  1. Claimant’s Rebuttal
filed April 26, 2006 (12 pages)

  1. Exhibits to Claimant’s Rebuttal
filed April 26, 2006 (40 pages)

  1. Transcripts 11-13-02
filed April 26, 2006 (25 pages)

  1. Document entitled “Pursuant to Motions in the New York State Court of Appeals”
received May 15, 2006 (16 pages)

  1. Notice of Supplemental Pleadings
received May 15, 2006 (5 pages)

  1. Document entitled “Amended from May 22, 2006 to correct material error”
received May 24, 2006 (14 pages)

  1. CC of letter from Claimant to Justice David G. Larimer, US Western NY District Court
received May 24, 2006 (30 pages)

  1. Notice of Motion to Permit Supplemental Pleadings
filed June 1, 2006 (28 pages)

  1. Supplemental Motion, Motion # M-71491
filed June 20, 2006 (10 pages)

  1. Supplemental Motion, Motion # M-71491, with Notice of Service
received June 23, 2005 (38 pages)

  1. Document captioned “Motion # M-71491"
filed July 6, 2006 (11 pages)

  1. Document captioned “Motion # M-71491"
filed July 10, 2006 (19 pages)

  1. Letter from James L. Gelormini, AAG, to Judge Sise
Received July 27, 2006 (1 page)

  1. Document captioned “Motion # M-71491"
filed July 24, 2006 (7 pages)

  1. Document captioned “Motion # M-71491"
received July 28, 2006 (6 pages)

  1. Document captioned “Motion # M-71491"
filed August 2, 2006 (5 pages)

  1. Document captioned “Motion # M-71491"
received August 7, 2006 (11 pages)

  1. Document captioned “Motion # M-71491"
filed August 9, 2006 (11 pages)

  1. Document captioned “Motion #M-71491"
filed August 21, 2006 (9 pages)

  1. Document captioned “Motion # M-71491 Additional”
filed August 23, 2006 (76 pages)

  1. Exhibits, Motion # M-71491
received August 23, 2006 (26 pages)

  1. Letter from Claimant to Judge Sise (3 pages)
Motion for Judgment by Default & Immediate Relief (NY Supreme Court) (17 pages)

Notice of and Motion for Subpoena Duces Tecum (NY Supreme Court) (8 pages)

received Sept. 26, 2006

  1. Letter from Claimant to Judge Sise (11 pages)
Motion for Reconsideration of Motion Panel’s Denial (31 pages)

received October 23, 2006


All of these documents, now identified by the number indicated, reside in the Court’s files. If Claimant does not have his own copy of each of these documents, he may apply to the Chief Clerk of the Court for copies of designated documents. Depending on whether the Court’s file contains duplicates of a document and the length of the documents in question, a fee may be charged for production of additional copies.

Inasmuch as no complete and accurate copy of the record on appeal has been submitted by Claimant, his motion for an order settling the record must be denied. This denial is without prejudice to a subsequent application made upon proper submissions. The Court notes, however, that Claimant has the option, under CPLR 5532 of stipulating with defense counsel “as to the correctness of the entire record on appeal or any portion thereof in lieu of certification,” an approach that may well be less cumbersome and time-consuming.
















April 3, 2007
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1]. Such a statement is to include, in order, 1) the index number of the case in the court below; 2) the full names of the original parties and any change in the parties; 3) the court and county in which the action was commenced; 4) the date the action was commenced and the dates on which each pleading was served; 5) a brief description of the nature and object of the action;
6) a statement as to whether the appeal is from a judgment or an order or both (including identifying information); and 7) a statement as to the method of appeal being used (CPLR 5531).
[2]. There is a copy of the affidavit establishing service of the original motion papers in March 2006.