|Claimant(s):||JESSIE J. BARNES, 09-B-2707|
|Claimant short name:||BARNES|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JEREMIAH J. MORIARTY III|
|Claimant's attorney:||Jessie J. Barnes, Pro Se|
|Defendant's attorney:||Hon. Andrew M. Cuomo
New York State Attorney General
By: Julie S. Mereson
Assistant Solicitor General
|Third-party defendant's attorney:|
|Signature date:||April 12, 2010|
|See also (multicaptioned case)|
The following were read and considered with respect to Claimant's motion to settle the record on appeal:
1. Notice of motion dated March 22, 2010 and unsworn statement of Claimant,(1) with
annexed Exhibits A-D;
2. Letter dated March 22, 2010 from Claimant to Principal Court Attorney Kevin J.
3. Letter dated March 23, 2010 from Claimant to Hon. Richard E. Sise, Presiding
4. Letter dated March 24, 2010 from Claimant to Hon. Richard E. Sise, Presiding
5. Appellate brief of Claimant with annexed Exhibits A-K;
6. Affirmation in response of Assistant Solicitor General Julie S. Mereson dated April
9, 2010, with annexed Exhibit A.
Claimant, an inmate proceeding pro se, alleged in claim no. 100753 that correction officers used excessive force against him amounting to an assault and, thereafter, that the facility failed to provide adequate and timely medical treatment for his resulting injuries while he was incarcerated at Collins Correctional Facility. The claim proceeded to trial and by decision dated April 27, 2009, and filed May 21, 2009, this Court held that Claimant had failed to establish his claim by a preponderance of the credible evidence and dismissed claim no. 100753. Judgment was entered on May 28, 2009.
On June 1, 2009, Claimant filed with the Court of Claims a notice of appeal from this Court's decision and order of April 7, 2008 (Barnes v State of New York, Ct Cl, April 7, 2008, Moriarty, J., claim no. 100753, motion no. M-73884, UID # 2008-037-012) and from this Court's decision following trial dated April 27, 2009 and filed May 21, 2009 (Barnes v State of New York, Ct Cl, April 27, 2009, Moriarty, J., claim no. 100753, UID # 2009-037-502). Claimant brings the present motion to settle the record on appeal. In paragraph 9 of his supporting statement, Claimant lists the documents he asserts should be included in the record on appeal. Among these documents are four prior decisions and orders of the Court of Claims, including motion no. M-73884 listed in the notice of appeal.
Claimant's application for appellate review is governed by Article 55 of the CPLR and by Part 1000 of the Rules of Practice for the Appellate Division, Fourth Department (22 NYCRR § 1000.1 et seq.). Pursuant to CPLR 5501 (a) (1), an appeal from a final judgment brings up for review non-final judgments or orders which affect the final judgment. One of the prior decisions and orders listed by Claimant for inclusion in the record on appeal is motion no. M-64723 (Barnes v State of New York, Ct Cl, June 21, 2002, Minarik, J., claim no. 100753, motion no. M-64723, UID # 2002-031-024). By this decision and order, the ad damnum clause was increased. Because this decision and order does not affect liability or the final judgment, it would not be considered by the Appellate Division and need not be included in the record on appeal. With respect to the remaining decisions and orders listed by Claimant in his proposed record on appeal, Assistant Solicitor General Mereson in her April 9, 2010 response to the present motion and in her April 2, 2010 letter to Claimant (Defendant's Exhibit A), avers that all of the documents considered by the Court with respect to the listed pre-trial motions as well as the trial transcript and the exhibits introduced into evidence at trial should be included in the record on appeal. The Court agrees (see CPLR 5526).
In addition to the pre-trial decisions and orders listed by Claimant in his proposed record on appeal is the decision and order of the Hon. Renée Forgensi Minarik on Claimant's motion no. M-69065 (Barnes v State of New York, Ct Cl, November 24, 2004, Minarik, J., claim no. 100753, motion no. M-69065, UID # 2004-031-159). By this decision and order, Judge Minarik denied Claimant's motion to strike Defendant's answer. Because this decision could affect liability, it should be included in the record on appeal, together with the documents considered by the Court which include: notice of motion filed September 2, 2004; Claimant's affidavit sworn to August 31, 2004, with annexed exhibits; affidavit of Assistant Attorney General Gregory P. Miller sworn to October 18, 2004, with annexed exhibits; and decision and order of Judge Minarik filed June 29, 2004 (M-67992).(2)
Claimant's proposed record on appeal also includes some correspondence and document demands or responses. The Court believes that some of these documents were attached to one of the affidavits served in support of or in opposition to the pre-trial motions listed by Claimant and thus would be included in the record on appeal as an exhibit to that motion. Insofar as Claimant's proposed list includes correspondence or documents not attached as an exhibit to one of the prior motions, it should not be included in the record on appeal.
Based on CPLR 5526 and § 1000.4 of the Rules of Practice of the Appellate Division, Fourth Department (22 NYCRR § 1000.4), the record on appeal should consist of the documents outlined by Assistant Solicitor General Mereson in her response to this motion and in her April 2, 2010 letter with the exception of item no. 9 which references a pre-trial motion which does not bear on the issues on appeal. In addition, the record on appeal should include Judge Minarik's decision and order filed December 7, 2004 (M-69065), the documents considered by the Court on this motion, proof of service and filing of the notice of appeal (22 NYCRR § 1000.4) and a statement in compliance with CPLR 5531.
Unfortunately, Claimant states in paragraph 10 of his supporting statement that he "will not for any reason amend, add, change or substitute any portion" of his proposed record on appeal. As no complete and accurate copy of the record on appeal in compliance with CPLR 5526 and § 1000.4 of the Rules of Practice (22 NYCRR § 1000.4) was submitted by Claimant and because he refuses to alter his proposed record on appeal, Claimant's motion for an order settling the record must be denied (Matter of Weeden v Ark, 2 AD3d 1280 ). This denial is without prejudice to a subsequent application made with proper submissions. Claimant may wish to consider his option pursuant to CPLR 5532, as suggested by Assistant Solicitor General Mereson in her April 2, 2010 letter, of stipulating with defense counsel as to the correctness of the record on appeal as this method may prove to be less cumbersome and time-consuming. Accordingly, it is hereby
ORDERED, that Claimant's motion no. M-78078 is denied, without prejudice.
April 12, 2010
Buffalo, New York
JEREMIAH J. MORIARTY III
Judge of the Court of Claims
1. Claimant's unsworn statement ends with the notation that "under the penalty of perjury, that the foregoing is true and correct." Pursuant to CPLR 2106, only an attorney or a non-party doctor, osteopath or dentist authorized to practice in the State of New York may serve and file an affirmation in lieu of an affidavit. Because Claimant is an inmate proceeding pro se, however, the Court has read and considered this statement.
2. Judge Minarik's decision and order filed June 29, 2004 is included in Claimant's proposed record on appeal.