The following papers were reviewed by the Court on this motion:
Claimant’s Notice of Motion, Claimant’s Affirmation in Support,
Defendant’s Affirmation in Opposition with annexed Exhibits A-C and
Claimant’s Reply. Claimant, Shawn Green, a pro se inmate, has
brought this motion seeking an order certifying the record on appeal.
Defendant, the State of New York, opposes this application.
Claimant has apparently appealed to the Appellate Division, Third Department, a
November 20, 2007 Decision and Order of this court denying claimant’s
motion, M-73617, for summary judgment in his
. Claimant’s motion to reargue the
November 20, 2007 Decision and Order was also denied by a Decision and Order of
this court filed on March 18, 2008.
It appears that in late July 2008, claimant forwarded to the Albany Office of
the Attorney General a notice to settle the record on appeal together with a
stipulation form and claimant’s proposed record on appeal. By letter
dated August 1, 2008, Ms. Marlene O. Tuczinski, Assistant Solicitor General,
wrote to claimant that she was enclosing a signed stipulation waiving
certification. Ms. Tuczinski informed claimant that she substituted copies of
originals of documents maintained in the Attorney General’s files for
documents which were rewritten by claimant. She also added a copy of the notice
of motion which she stated was not in the proposed record. Ms. Tuczinski then
directed claimant to omit a Decision and Order written by Court of Claims Judge
Schaewe and a document identified as Admission, Interrogatories and Discovery to
Defendant from the proposed record, as she deemed those documents as being
irrelevant to the proposed record. In response, claimant notified Ms. Tuczinski
that omitting the two documents would “defeat the argument and purpose for
appeal to determine claimant[’s] entitlement to judgment with limited
discovery.” Thereafter, Ms. Tuczinski withdrew her stipulation waiving
certification of the record.
Claimant has failed to submit a proposed record with his motion for the court
to review in this matter. A properly supported motion for judicial settlement
of the record on appeal should include the original or a copy of the proposed
record on appeal. Thus, the court is unable to settle the proposed record at
this time. However, the parties are reminded that the court read and considered
the following papers on claimant’s summary judgment motion, M-73617:
Claimant’s Notice of Motion for Summary Judgment, Claimant’s
“Affirmation” in Support, Claimant’s Memorandum of Law with
annexed Exhibits A-F, Defendant’s Affirmation in Opposition to
Claimant’s Motion for Summary Judgment, Claimant’s Reply, the filed
Claim and the filed Answer. The court encourages the parties to again attempt
to settle the record on appeal without court intervention.
Therefore, for the foregoing reasons, claimant’s motion is denied.