Thursday, March 3, 2011

First Department Dismisses Appeal for Failure to Assemble a Proper Record

In Lynch v. Con Ed, the plaintiff tripped on a defect in a roadway near a manhole cover. She sued Con Edison and Nico Asphalt, who Con Ed had hired to re-pave the area around the manhole. After trial, the jury found Nico free from negligence and because of the configuration of the verdict sheet it did not reach the issue of Con Ed's liability. The trial court thereafter denied plaintiff's motion to set aside the verdict and plaintiff appealed.

In dismissing plaintiff's appeal, the Court stated:"The appeal is dismissed because plaintiff failed to assemble a proper record on appeal, including the trial transcript and the minutes of the charge conference (see Sebag v Narvaez, 60 AD3d 485 [2009], lv denied 13 NY3d 711 [2009]; CPLR 5526; Rules of App Div, 1st Dept [22 NYCRR] § 600.5). Without the benefit of a proper record, this Court cannot "render an informed decision on the merits" (Matison v County of Nassau, 290 AD2d 494, 495 [2002])."

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