New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2007-044-584, Claim No. None , Motion Nos. M-73773, CM-73860


Synopsis


Court has jurisdiction to settle the record where appeal of court’s denial of claimant’s summary judgment motion in lieu of complaint is being prosecuted by use of appendix method. Because court’s denial of motion to reargue original denial of summary judgment motion is not appealable, reargument motion papers should not be included in record on appeal.

Case Information

UID:
2007-044-584
Claimant(s):
SHAWN GREEN
Claimant short name:
GREEN
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-73773
Cross-motion number(s):
CM-73860
Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
SHAWN GREEN, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 13, 2007
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant, an inmate currently residing at Southport Correctional Facility, previously moved for summary judgment in lieu of complaint (Motion No. M-72177) to recover for personal property allegedly lost when he was moved from Elmira Correctional Facility to Attica Correctional Facility. The Court found, among other things, that claimant’s failure to both file and serve a claim with his motion papers deprived the Court of jurisdiction, and therefore denied Motion No. M-72177 (Green v State of New York, Ct Cl, Nov. 15, 2006, Schaewe, J., Claim No. None, Motion No. M-72177 [UID # 2006-044-515]).

On December 13, 2006, claimant filed a notice of appeal with the Clerk of the Court. Simultaneously, claimant moved for reargument (Motion No. M-72663). The Court denied Motion No. M-72663 by Decision and Order filed March 8, 2007 (Green v State of New York,

Ct Cl, Mar. 5, 2007, Schaewe, J., Claim No. None, Motion No. M-72663 [UID # 2007-044-517]). Claimant now moves to settle the record so that he may proceed with his appeal.[1] Defendant State of New York (defendant) opposes the motion and cross-moves to dismiss it. Claimant replies.

Claimant argues that the Attorney General’s Office has refused to stipulate to the record on appeal, and as a result, he needs the Court to certify the record. Defendant contends that the Court is without jurisdiction to certify the appellate record, and that such motion should be brought before the Appellate Division, Third Department. Claimant asserts that the Court is authorized to certify the record pursuant to the CPLR as well as the Rules of the Appellate Division, Third Department.

Appeals to the Appellate Division, Third Department may be prosecuted either upon a full record reproduced, or upon the appendix method.[2] When a party proceeds by the appendix method, “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” (Rules of

App Div, 3d Dept [22 NYCRR] § 800.7 [b]). In his statement pursuant to CPLR 5531, claimant states that he is prosecuting the appeal by use of the appendix method. Accordingly, and contrary to defendant’s contention, this Court has the jurisdiction to settle the record in this matter (Rules of App Div, 3d Dept [22 NYCRR] § 800.7 [b]).

In order to settle the record, the Rules of the Appellate Division, Third Department (22 NYCRR) § 800.7 (b) provide that the Court shall utilize the procedure set forth in CPLR 5525 (c). Claimant, as the appellant, appears to have submitted the proposed record on appeal within the appropriate time frame as set forth in CPLR 5525 (c) (1). The proposed record includes, among other documents, the Court’s Decision and Order denying Motion No. M-72663 for reargument and the applicable motion and responding papers. Defendant objected, apparently in a timely manner as required by the statute, solely to the inclusion of the pleadings “relating to [the] motion for reargument.”

CPLR 5526 provides that a record on appeal from an order “shall consist of the notice of appeal, the . . . order appealed from, the transcript, if any, the papers and other exhibits upon which the . . . order was founded and any opinions in the case.” The sole issue remaining before the Court is whether the record on appeal should include the motion and opposition papers submitted on Motion No. M-72663.[3] The denial of the motion to reargue itself is not appealable (see Dickan v State of New York, 16AD3d 760 [2005]; Ireland v Wilenzik, 296 AD2d 771 [2002]). Accordingly, claimant’s papers in support of Motion No. M-72663 and defendant’s opposition thereto would not be considered by the Appellate Division, and are not properly included in the record on appeal (see Randolph v Warnecke, 1 AD3d 731, 732 [2003]).

Claimant’s motion to settle the record is granted and, the record on appeal in this matter shall consist of the following:
1) Notice of Appeal filed December 13, 2006 with proof of service;

2) Decision and Order filed November 29, 2006 (Green v State of New York, Ct Cl, Nov. 15, 2006, Schaewe, J., Claim No. None, Motion No. M-72177 [UID # 2006-044-515]);

3) Notice of Motion filed August 21, 2006; Affidavit of Shawn Green sworn to August 15, 2006; and Memorandum of Law dated August 15, 2006 with annexed exhibits;

4) Affirmation in Opposition of Joseph F. Romani, AAG dated September 6, 2006;

5) Decision and Order filed March 8, 2007 (Green v State of New York, Ct Cl, Mar. 5, 2007, Schaewe, J., Claim No. None, Motion No. M-72663 [UID # 2007-044-517]);

6) A description of the action pursuant to CPLR 5531; and

7) The order settling the record.

The above constitutes a complete record of all papers pertinent to claimant's appeal.

Defendant’s cross motion is denied.


December 13, 2007
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on claimant’s motion and defendant’s cross motion:

1) Notice of Motion filed on July 23, 2007; Affidavit of Shawn Green sworn to on July 9, 2007, and attached exhibits.

2) Notice of Cross Motion filed on August 20, 2007; Affirmation of Joseph F. Romani, AAG, dated August 17, 2007.


3) Reply of Shawn Green sworn to on August 22, 2007.


[1]. Claimant also initially requested permission to proceed as a poor person on the appeal. In his reply affidavit, claimant withdraws that portion of the motion “due to forum non conveniens.”
[2]. A third method, an appeal upon an agreed statement, is also authorized, but rarely used because it is generally not possible for the parties to agree upon the statement to be submitted for approval (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C5527:1, at 404; see also Green v State of New York , Ct Cl, Mar. 19, 2007, Moriarity, J., Claim No. 104741, Motion No. M-72863 [UID # 2007-037-014]).
[3]. As previously set forth, defendant did not object to the inclusion of the Decision and Order denying Motion No. M-72663.