Record on appeal was settled.
|Claimant short name:||GREEN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Shawn Green, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Michael S. Buskus, Esquire
Assistant Solicitor General
|Third-party defendant's attorney:|
|Signature date:||November 15, 2010|
|See also (multicaptioned case)|
Claimant, a pro se inmate, moves for an order "certifying" the record on appeal.
By a Decision of this Court dated February 26, 2010, the instant claim was dismissed except to the extent of awarding the claimant $120.00 on his cause of action for wrongful confinement (defendant's Exhibit A).(1) A judgment was thereafter entered and served on the parties by the Chief Clerk of the Court of Claims on March 24, 2010 (defendant's Exhibit B). Claimant states in support of the motion that he "forwarded a Notice to Settle Record on Appeal, dated April 16, 2010, along with the proposed record to the Attorney General [sic] Office that same month" (claimant's affidavit sworn to August 3, 2010, ¶ 3). Claimant contends defense counsel's failure to stipulate to the proposed record on appeal requires this court to settle the record, citing 22 NYCRR § 800.7 [b]. Defendant opposes the motion, primarily on the ground that the trial transcript was omitted from the proposed Table of Contents and a copy of the proposed record on appeal was never served.
Claimant contends that he need not include a copy of the trial transcript in the record on appeal and submits for the Court's consideration a proposed Table of Contents which omits reference to the trial transcript and appears to include documents which were neither introduced nor received in evidence at trial.
It appears the claimant is attempting to perfect the instant appeal utilizing the appendix method. When the appendix method for perfecting an appeal is used, the appellant must nevertheless file with the clerk or serve upon respondent a single copy of the papers constituting the record on appeal compiled in accordance with 22 NYCRR § 800.5 (see 22 NYCRR § 800.4 [b]). Section 800.5 (a) (4) requires that the record contain, inter alia, "the notice of appeal . . . judgment or order appealed from, judgment roll, corrected transcript . . ., any affidavits or relevant exhibits or copies of them, and any opinion or decision in the case" (emphasis added). The judgment roll includes, inter alia, the pleadings, each judgment and order involving the merits or necessarily affecting the final judgment and, if a trial was had, the decision and trial transcript (CPLR 5017 [b]; see also 22 NYCRR § 800.6 [a] [when the appendix method is used, a copy of the transcript shall be included in the single copy of the record on appeal]).(2) Where the appendix method is used and the parties are unable to stipulate to the record on appeal, the record must be "settled by the judge before whom the proceedings were held" (22 NYCRR § 800.7 [b]).
The foregoing establishes that notwithstanding the claimant's intention to perfect his
appeal utilizing the appendix method, a record on appeal compliant with § 800.5 (22 NYCRR) must be filed with the clerk or served on the respondent (see 22 NYCRR § 800.4 [b]). Inasmuch as the claimant's proposed Table of Contents for the record on appeal does not include the trial transcript, the proposed record on appeal, though not submitted for the Court's consideration, clearly fails to comply with the requirements of this section. Accordingly, claimant's motion to settle the record on appeal is granted only to the extent the record on appeal must comport with the requirements of 22 NYCRR § 800.5 (a), which requires inclusion of the notice of appeal, judgment or order appealed from, judgment roll, corrected trial transcript and relevant trial exhibits.(3)
November 15, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. By Decision and Order of this Court filed December 14, 2007, claimant's motion for partial summary judgment on the issue of liability on his cause of action for wrongful confinement was granted.
2. Section 800.5 (a) (5) of the appellate division rules (22 NYCRR Part 800) requires a stipulation by the parties or order settling the transcript pursuant to CPLR 5525 (c).
3. Claimant's appendix must comply with the requirements of 22 NYCRR § 800.8.