New York State Court of Claims

New York State Court of Claims

JONES v. STATE OF NEW YORK, #2008-018-640, Claim No. 105792, Motion No. M-75395


Claimant must only include the information and documents in the record for appeal from the trial on liability as that is the only Decision of this Court which is being appealed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
By: Frank K. Walsh, EsquireAssistant Solicitor General
Third-party defendant’s attorney:

Signature date:
November 12, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant brings a motion to settle the record on appeal pursuant to 22 NYCRR

§ 800.7(b). Defendant opposes the motion.

By way of background, Claimant filed and served a claim in this matter seeking, among other damages, damages for personal injuries he suffered while an inmate with the State of New York, on June 17, 2000, at Ogdensburg Correctional Facility. The Court, by a Decision and Order filed June 11, 2003, dismissed other causes of action set forth in the claim. The Court bifurcated the claim by Amended Order signed October 29, 2004.

A trial was held on the issue of liability on January 25, 2006, and a Decision filed on October 16, 2006, found the Claimant and Defendant each fifty percent (50%) liable for Claimant’s injuries. An interlocutory judgment was entered. On April 15, 2008, a final judgment was entered in the claim in favor of Claimant in the amount of $25,000 after a Decision on damages was filed on April 18, 2008. Claimant filed a notice of appeal from the final judgment on May 14, 2008, on the ground that there was no evidence presented during the liability trial to support the Court’s finding that Claimant was 50% comparatively at fault for his injuries. Defendant filed a Certificate of No Appeal on April 28, 2008.

An application for appellate review to one of the appellate divisions is governed by Article 55 of the CPLR and the specific appellate division court rules. Rules of Practice for the Appellate Division, Third Department, § 800.7(b) provide that where the appendix method is being used, as Claimant has elected in this appeal, the single copy of the record must be stipulated to by the parties, or if unable to stipulate, settled by the Judge before whom the proceedings were held. The procedure for settlement of a single copy of the record shall be in the same manner as provided by CPLR 5525(c), which describes the procedure for settlement of the transcript.

Here, Claimant served a copy of the proposed record on appeal on Defendant. Defendant, by letter, returned the documents objecting to the proposed record as failing to comply with Rule 800.5 of the Rules of the Third Department (22 NYCRR § 800.5). Defendant objected on the grounds that the proposed record was unbound, unnumbered, and the table of contents failed to list by page number each paper, document, and exhibit included with descriptions. Defendant also noted that Claimant failed to include a copy of the transcript from the damages trial or most of the trial exhibits. Defendant advised that if these deficiencies were corrected, a stipulation could be executed. In response, Claimant brought this motion seeking an order settling the record.

The primary obstacle to a stipulated record seems to be whether the transcript and exhibits from the damages trial must be included as part of the record on appeal where Claimant’s sole appellate issue arises from the findings of the Court after the liability trial.

Although Claimant has awaited final judgment to appeal, his appeal seeks review solely of this Court’s Decision on liability. The statutes and Court rules do not specifically address this situation. However, the case law and Professor Siegel in Siegel, New York Practice [4th ed.] make clear that the record must be adequate for the Appellate Court to review “whatever it is that is being questioned.” (Siegel, New York Practice, [4th ed.] § 538, p. 929; see also Tremont Sav. & Loan Assn. v Prestige Homes, 34 AD2d 842; Robinson & Carpenter, Inc. v Gangl, 31 AD2d 665, 665-667; Perry v Tauro, 21 AD2d 804; Green v State of New York, Ct Cl, Schaewe, J., signed December 13, 2007, Cl. No. None; Motion Nos. M-73773, CM-73860, UID # 2007-044-584; Supensky v State of New York, Ct Cl, Minarik, J., signed March 3, 2003, Cl. No. 96861, Motion No. M-66368, UID # 2003-031-009). It is the appellant’s obligation when putting together the record on appeal to include all of the papers and other exhibits upon which the judgment or order being appealed was founded (Siegel, New York Practice [4th ed.] § 538, p. 929).

Since Claimant only seeks review of this Court’s Decision on liability after a separate trial, only the transcripts and exhibits from the liability trial should be included in this record on appeal.

CPLR Rule 5526 requires that a record on appeal from a final judgment shall consist of the notice of appeal, the judgment-roll, the corrected transcript of the proceeding if a trial or hearing was held, any relevant exhibits or copies of them, and any other reviewable order and any opinions in the case.

The Rules of Practice for the Appellate Division, Third Department § 800.5 require that the record on appeal include in the following order “so much of the following items as shall be applicable to the particular appeal or proceeding:
(1) a soft cover containing the title and the names, addresses and telephone numbers of attorneys;

(2) a table of contents which shall list and briefly describe each paper included in the record, each witness’ testimony and each exhibit. The part relating to a transcript of testimony shall separately state as to each witness the page at which direct, cross, redirect and recross examination begins. The part relating to exhibits shall briefly describe each exhibit and shall indicate the page where offered or admitted in evidence and whether the exhibit has been omitted from the record;

(3) a statement pursuant to CPLR 5531;

(4) the notice of appeal or order of transfer, judgment or order appealed from, judgment roll, corrected transcript or statement in lieu thereof, any affidavits and relevant exhibits or copies of them, and any opinion or decision in the case;

(5) a stipulation or order settling the transcript pursuant to CPLR 5525(c);

(6) a stipulation dispensing with reproducing any exhibits. Exhibits may be omitted from the record pursuant to stipulation of counsel or by permission of the presiding justice. Omitted exhibits which are material to the issues raised on appeal shall be filed when briefs are filed. All exhibits, whether omitted from the record or not, shall be listed and briefly described in the table of contents;

(7) the appropriate certification or stipulation as required by section 800.7 of this Part;

Accordingly, the record on appeal shall include the following:
  1. Cover in accordance with 22 NYCRR §800.5(a)(1)
  2. Table of contents in accordance with 22 NYCRR § 800.5(a)(2)
  3. CPLR 5531 statement
  4. Notice of Appeal filed May 14, 2008
  5. Judgment entered April 15, 2008
  6. Judgment roll
a) Claim filed March 22, 2002

b) Verified Answer filed July 2, 2004
c) Decision and Order on Motion No. M-65003, CM-65106, filed June 11, 2003

d) Amended Order Scheduling bifurcated trials dated October 29, 2004

e) Decision filed October 16, 2006

f) Interlocutory Judgment entered October 23, 2006
g) Decision filed April 8, 2008
  1. Original complete transcript of liability trial held January 25, 2006, pages 1(cover sheet) through page 77, certified on June 18, 2008
8. Claimant’s trial exhibits,[1] identified and, if applicable, admitted into evidence during the liability trial on January 25, 2006:

a) Exhibit 1, note of issue, dated 7/14/05
b) Exhibit 2, affidavit of Claimant Charles Jones in support of claimant’s motion for summary judgment sworn to on October 17, 2005

c) Exhibit 3, Verified Claim dated March 11, 2002, filed March 22, 2002

d) Exhibit 4, verified answer dated and filed July 2, 2004
e) Exhibit 5, affidavit of Jesse Sanchez in support of claimant’s motion for summary judgment sworn to on October 10, 2005

f) Exhibit 6, Ogdensburg Correctional Facility Report of Inmate Injury with date of injury June 17, 2000 (Admitted into evidence)

g) Exhibit 7, Claimant’s Ambulatory Health Record (Admitted into evidence)

  1. Exhibit 8, Copy of Log Book Entries (Page #254) (Admitted into evidence)

i) Exhibit 9, Notice to Admit
  1. Exhibit 10, Defendant’s response to Claimant’s Demand for A Bill of Particulars

k) Exhibit 11, Affidavit of Irvin Shaver 11/7/05

l) Exhibit 12, Retyped Interrogatories of Correction Officer I. Shaver

(Admitted into evidence)

m) Exhibit 13, Ogdensburg Correction Facility Housekeeping Service Schedule (By M-Basketball Court) (Admitted into evidence)

  1. Exhibit 14, Material Safety Data Sheet (Gabriel): Dust Mop Treatment Item #53501 (Admitted into evidence)

o) Exhibit 15, Material Safety Data Sheet (Spectrow Ax Corp)

(Admitted into evidence)

  1. Exhibit 16, Demand for a Verified Bill of Particulars as to the Defendant’s Claimed Second Affirmative Defense Alleging Culpable Conduct
  1. Exhibit 17, Claimant’s (1) Verified Answers to Bill of Particulars & (2) Response to Discovery Demands
r) Exhibit 18, Interrogatories 4/24/05

  1. Exhibit 19, Defendant’s Response to Claimant’s Demand for a Bill of Particulars
t) Exhibit 20, Letter from North General Hospital to Whom it May Concern DTD 2/2/01

  1. Exhibit 21, DOCS Refusal of Medical Exam and or treatment DTD 10/3/00
v) Exhibit 22, Ambulatory Health Record 6/23/00

w) Exhibit 23, Ambulatory Health Record 7/20/00

  1. Exhibit 24, Health Services System CCP Referral Decision 10/12/00

y) Exhibit 25, Ambulatory Health Record 2/2/01

15. Copy of this Decision and Order dated October 29, 2008, filed November 6, 2008, and this corrected Decision and Order.

The above constitutes a complete record of all papers pertinent to Claimant’s appeal.

November 12, 2008
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

1. Notice of Motion

2. Affidavit of Charles Jones, in support, sworn to August 16, 2008.

3. Corrected/Amended Affidavit of Charles Jones, in support, sworn to

August 18, 2008.

4. Affirmation of Frank K. Walsh, Assistant Solicitor General, in opposition, with exhibits attached thereto.

[1].Defendant had no exhibits marked or identified for the trial on liability on January 25, 2006. Although all of the exhibits were Claimant’s, the actual exhibit stickers, while reflecting the proper color and exhibit numbers erroneously state “Defendant’s” exhibits.