Claimant's motion to settle and certify the record on appeal denied as moot. Claimant did not timely perfect his appeal, and thus, it was deemed abandoned by Appellate Division rule.
|Claimant short name:||GREEN|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||SHAWN GREEN, Pro se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Jennifer L. Clark, Assistant Solicitor General
|Third-party defendant's attorney:|
|Signature date:||November 15, 2017|
|See also (multicaptioned case)|
This claim was litigated pro se by claimant, an individual who is incarcerated in a State correctional facility. The claim asserted a variety of causes of action arising from an assortment of alleged misfeasance by defendant's employees. Claimant's motion to compel a response to his discovery demands and for partial summary judgment was denied, and the claim was dismissed on defendant's cross motion for lack of jurisdiction and failure to state a cause of action (Green v State of New York, UID No. 2016-038-535 [Ct Cl, DeBow, J., June 1, 2016, filed June 6, 2016]). Claimant's motion for reargument was denied (Green v State of New York, UID No. 2017-038-501 [Ct Cl, DeBow, J., Jan. 5, 2017]). Claimant's instant motion seeks an order to certify and settle the record on appeal, which defendant opposes on mootness grounds. The motion will be denied, for the reasons that follow.
The rules of the Appellate Division provide that an appeal shall be deemed abandoned where the appellant fails to serve and file a record and a brief within nine months of the date of the notice of appeal (see 22 NYCRR § 800.12 [Third Department]) or within nine months of its date of service (see 22 NYCRR § 1000.12 [Fourth Department]). Claimant's notice of appeal was dated and served on July 11, 2016 and thus - without considering or deciding whether claimant's notice of appeal was timely - his appeal to the Appellate Division would have been deemed abandoned if it was not perfected by April 11, 2017. Claimant does not state that he has perfected the appeal, and indeed, his affidavit in support of his motion states that he sent to the Attorney General's Office a notice to settle the record on appeal on May 4, 2017, thus indicating that his appeal was not timely perfected. Accordingly, his appeal was deemed abandoned,(1) and any relief he seeks related to the appellate record is moot.
To the extent that claimant argues in reply that he will move to vacate the dismissal of his appeal after this Court issues an order certifying the record, the contention is untenable. Claimant's motion for certification of the record - if even necessary(2) - was untimely, and the Court will not issue an order addressed to an appellate record when there is no appeal. Should claimant prevail on a motion to vacate the dismissal of his appeal, the need to assemble an appellate record will then be revived. Accordingly, it is
ORDERED, that claimant's motion number M-90731 is DENIED.
November 15, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Decision and Order, Green v State of New York, UID No. 2016-038-535, DeBow, J.,
dated June 1, 2016, filed June 6, 2016;
(2) Decision and Order, Green v State of New York, UID No. 2017-038-501, DeBow, J.,
dated Jan. 5, 2017;
(3) Motion to Settle and Certify Record on Appeal, dated June 20, 2017, with submission
of Shawn Green, sworn to June 20, 2017, with exhibits;
(4) Correspondence of Jennifer L. Clark, Assistant Solicitor General, dated July 21, 2017;
(5) Letter reply of Shawn Green, dated July 27, 2017.
1. To the extent that the abandonment of claimant's appeal has been determined by calculation upon uncertain dates, claimant has not asserted - either in his initial submission or his reply - that he did not receive or did not timely receive notice of entry of the order appealed from.
2. The statutes and rules that are addressed to certification of appellate records do not clearly demonstrate that the record in this matter requires Court-ordered certification because there were no transcripted proceedings and it does not appear that claimant would proceed using the appendix method (see CPLR 5525 [c]; CPLR 5532; 22 NYCRR § 800.7 [a], [b]).