New York State Court of Claims

New York State Court of Claims

GREEN v. STATE OF NEW YORK , #2007-037-014, Claim No. 104741, Motion No. M-72863


Synopsis


Claimant’s motion for statement in lieu of stenographic record denied.

Case Information

UID:
2007-037-014
Claimant(s):
SHAWN GREEN
Claimant short name:
GREEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104741
Motion number(s):
M-72863
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Shawn Green, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Joseph F. Romani, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 19, 2007
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following were read and considered with respect to Claimant’s motion for statement in


lieu of stenographic transcript:

1. Notice of motion and supporting affidavit of pro se Claimant Shawn Green sworn to

December 26, 2006, with annexed statement;

2. Opposing affirmation of Assistant Attorney General Joseph F. Romani dated

February 2, 2007;

3. Reply affidavit of pro se Claimant Shawn Green sworn to February 6, 2007;

4. Amended opposing affirmation of Assistant Attorney General Joseph F. Romani

dated February 7, 2007.


Filed papers: Claim filed August 17, 2001; Answer filed December 14, 2001.

Pro se Claimant Shawn Green alleged in claim number 104741 that while he was in the custody of the New York State Department of Correctional Services (DOCS) at Elmira Correctional Facility (Elmira), a correction officer filed a false misbehavior report against him and that the hearing officer for the Tier III disciplinary hearing that followed was biased against him causing him to be wrongfully convicted of the charges and sentenced to confinement in the Special Housing Unit (SHU) resulting in the loss of privileges and mental anguish. Trial of the matter was held at Elmira on March 29, 2006.

In its decision filed May 19, 2006, the Court found that the hearing officer had taken appropriate disciplinary measures and acted within the scope of his discretionary authority in conducting the hearing and in imposing penalties. The Court further found that there was nothing before the Court to indicate that Defendant violated any of its own rules and regulations in conducting the hearing, or acted outside the sphere of privileged actions. Accordingly, the Court held that the Defendant was entitled to immunity (see Arteaga v State of New York, 72 NY2d 212 [1988]; Green v State of New York, Ct Cl, May 11, 2006, Moriarty, J., Claim No. 104741, UID # 2006-037-504). Judgment entered dismissing claim no. 104741 was dated May 26, 2006. Claimant appealed the judgment (see notice of appeal filed June 9, 2006).

Claimant brings this motion pursuant to CPLR Rule 5527 for permission to file a statement in lieu of a stenographic transcript of the trial conducted on March 29, 2006. Rule 5527 of the CPLR is a rarely used alternative to the full record method of perfecting an appeal. This rule applies where the parties agree on a written statement showing how the questions presented by the appeal arose and were decided and setting forth so much of the facts as are necessary to a decision of the questions presented on appeal. This method of submitting a joint statement is the least expensive, and least common method of prosecuting an appeal because it is not often possible for the parties to mutually agree upon a statement to be submitted for approval (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C5527:1, at 404). Indeed, Defendant makes clear that it has not and will not agree to a statement in lieu of the full record on appeal. Because Defendant has not agreed to the statement annexed to Claimant’s motion papers and will not agree to the submission of a joint statement, there is no agreed statement for the Court to approve and Claimant’s motion for approval of a statement pursuant to CPLR Rule 5527 must be denied.

In his reply affidavit, Claimant argues that the Court is authorized to certify his statement pursuant to CPLR Rule 5525 (d), Rule 800.7 [b] and Glass v Regency Park Assoc., 100 Misc 2d 179 (1979). Rule 5525 (d) of the CPLR provides a procedure by which the trial Court may review and approve a statement of the trial proceedings where no stenographic record of the proceedings is made. This procedure is rarely used as it is not often that a hearing or trial occurs today without a stenographer present (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C5525:4, at 381). In Glass v Regency Park Assoc., supra, cited by Claimant, this procedure was used because a stenographer was not present during the small claims trial and a verbatim transcript of the trial could not be produced from the tape recording of the trial made due to the poor quality of the tape recording. That is not the present situation. Here, a court monitor was present during trial and there is no reason to even suspect that a verbatim transcript of the trial could not be produced. Because a transcript can be made available, CPLR Rule 5525 (d) is not applicable and Claimant’s motion for approval of a statement in lieu of a transcript pursuant to CPLR Rule 5525 (d) must be denied.

Claimant also alleges in his initial affidavit in support of his motion that “no transcripts was [sic] necessary for questions of law being presented on appeal and excerpts not the complete disciplinary proceeding had been admitted at trial.” The latter part of the quote suggests that Claimant is attempting by his motion to settle the record on appeal and that the question to be settled is whether the transcript of the entire as opposed to a portion only of the disciplinary hearing needs to be included in the record on appeal. Claimant has failed, however, to provide the Court with the original or a copy of the proposed record on appeal or of the transcript of the disciplinary hearing. Accordingly, there can be no settlement of the record by the Court.

The first portion of the quote from Claimant’s affidavit again suggests that it is the transcript of the trial that Claimant does not want to produce. Rule 5525 (b) provides that “[n]o transcript is necessary where a party appeals from a judgment entered upon a referee’s report, or a decision of the court upon a trial without a jury, and he relies only upon exceptions to rulings on questions of law made after the case is finally submitted.” This rule was intended as a means of prosecuting an appeal where only questions of law are presented and there are no questions of fact. Granted, the appeal here is from a judgment entered upon the Court’s decision after a non-jury trial. Claimant appears, however, to be challenging the conclusion of law which was based on all of the proof adduced at trial and the findings of fact set forth in the Court’s May 11, 2006 decision. Because the Court’s decision was not based on conceded or undisputed facts, any alleged issue of law presented by Claimant can not be resolved without determining the propriety of the findings of fact or without making new findings. This can only be accomplished by a review of the trial transcript (see Smoley v Merrick Estates Civic Assn., 20 AD2d 654 [1964]). Accordingly, the record on appeal must include the transcript either stipulated as correct by the parties or settled by the Court pursuant to CPLR Rule 5525 (c) (see also CPLR 5526; 22 NYCRR 800.6, 800.7; Matter of Conklin v Rogers, 98 AD2d 918 [1983]).

The Court encourages Claimant to settle the record on appeal with Defendant’s counsel. If this can not be accomplished, then Claimant may bring a properly supported motion for judicial settlement of the record on appeal, which would include the original or a copy of the proposed record on appeal, pursuant to 22 NYCRR 800.7.

Based on the foregoing, it is hereby

ORDERED, that Claimant’s motion for a statement in lieu of a stenographic transcript is denied.



March 19, 2007
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims