Claimant's motion to settle record on appeal is denied where claimant has not served a copy of proposed record on appeal on defendant and claimant's motion papers fails to include a copy of the Decision and Order appealed from, fails to adequately identify the Decision and Order appealed from and fails to include a copy of the proposed record on appeal for which claimant seeks settlement and certification.
|Claimant short name:||GREEN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||SHAWN GREEN
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Attorney General
By: Kathleen M. Treasure, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 4, 2018|
|See also (multicaptioned case)|
Claimant moves "pursuant to Third Department Rule 800.7 (b)" for "an order settling and certifying record assembled for matter being appealed." Defendant opposes the claimant's motion to settle the record on appeal.
The Court notes that 22 NYCRR 800.7 (b), the rule cited by claimant in support of the relief requested, was repealed effective September 17, 2018. Claimant's motion was made on August 27, 2018, prior to the rule's repeal.
Claimant states, in support of his motion, that he "forwarded a Notice to Settle Record on Appeal along with a proposed Table of Contents to the Attorney General's office for amendments or objections" and that defendant "declined to provide a response thereto." Claimant further states that "claimant isn't required to provide Defendant's attorney with a duplicate copy of pleadings, notice, motion and response papers."
In opposition, defendant argues that 22 NYCRR 800.7 (b) "permits an appellant's counsel (not a party acting pro se) to certify a single copy of the record on appeal as correct for purposes of using the appendix method if a respondent fails to make any proposed amendments or objections to the record 'within 20 days of service of it upon respondent.'"
Defendant asserts that the rule does not apply because claimant is not an attorney and, even if the rule does apply, claimant failed to serve on defendant "a proposed record on appeal as required by the rule."
In reply, the claimant does not dispute that he has not served a copy of the proposed record on appeal on defendant.
In addition to failing to serve a copy of the proposed record on appeal on defendant, claimant's motion papers do not include a copy of the proposed record on appeal. Claimant's motion papers do not include a copy of the Decision and Order he is appealing from and, significantly, claimant identifies the challenged Decision and Order as a denial of "Claimant's motion for summary judgment (M-90926)," - - which was decided by Hon. Debra A. Martin, J.C.C, not this Court.
The claimant's motion is denied.
December 4, 2018
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered: 1. Claimant's Motion to Settle and Certify Record on Appeal, filed September 4, 2018;
2. Affidavit of Shawn Green, sworn to August 27, 2018;
3. Affirmation in Opposition of Kathleen M. Treasure, dated September 19, 2018, and attached exhibit;
4. Reply Affidavit of Shawn Green, sworn to September 24, 2018, and attached exhibits.