Opinion
2014-01-22
Beatriz AGUIAR–CONSOLO, appellant, v. CITY OF NEW YORK, et al., respondents. (Action No.1) Robert Consolo, Jr., etc., et al., plaintiffs-appellants, v. City of New York, et al., respondents, Beatriz Aguiar–Consolo, defendant-appellant. (Action No. 2).
Mark E. Feinberg, Brooklyn, N.Y. (Louis A. Badolato of counsel), for appellant in Action No. 1 and defendant-appellant in Action No. 2, and Raymond A. Raskin, Brooklyn, N.Y. (Louis A. Badolato of counsel), for plaintiffs-appellants in Action No. 2 (one brief filed). Jeffrey D. Friedlander, Acting Corporation Counsel, New York, N.Y. (Francis F. Caputo and Shannon Colabrese of counsel), for respondents in Action Nos. 1 and 2.
Mark E. Feinberg, Brooklyn, N.Y. (Louis A. Badolato of counsel), for appellant in Action No. 1 and defendant-appellant in Action No. 2, and Raymond A. Raskin, Brooklyn, N.Y. (Louis A. Badolato of counsel), for plaintiffs-appellants in Action No. 2 (one brief filed). Jeffrey D. Friedlander, Acting Corporation Counsel, New York, N.Y. (Francis F. Caputo and Shannon Colabrese of counsel), for respondents in Action Nos. 1 and 2.
In two related actions, inter alia, to recover damages for personal injuries, which were joined for trial, Beatriz Aguiar–Consolo, the plaintiff in Action No. 1 and a defendant in Action No. 2, appeals, and Robert Consolo, Jr., and Carina Consolo, the plaintiffs in Action No. 2, separately appeal, from an order of the Supreme Court, Richmond County (Dollard, J.), dated April 21, 2011, which denied their joint motion pursuant to CPLR 4404(a), inter alia, to set aside a jury verdict on the issue of liability as contrary to the weight of the evidence and for a new trial.
ORDERED that the appeals are dismissed, with one bill of costs payable by the appellants.
“ ‘An appellant who perfects an appeal by using the appendix method must file an appendix that contains all the relevant portions of the record in order to enable the court to render an informed decision on the merits of the appeal’ ” (Grossman v. Composto–Longhi, 96 A.D.3d 1000, 1001, 948 N.Y.S.2d 95, quoting Gandolfi v. Gandolfi, 66 A.D.3d 834, 835, 886 N.Y.S.2d 617; see Christian v. Graham, 73 A.D.3d 676, 677, 899 N.Y.S.2d 671). “The appendix shall contain those portions of the record necessary to permit the court to fully consider the issues which will be raised by the appellant and the respondent” (22 NYCRR 670.10–b[c][1]; see CPLR 5528[a][5] ).
Here, the appellants seek review of an order which denied their joint motion pursuant to CPLR 4404(a), inter alia, to set aside a jury verdict on the issue of liability as contrary to the weight of the evidence and for a new trial and, therefore, the appendix should have included the full trial transcript ( see Kruseck v. Ross, 82 A.D.3d 939, 940, 918 N.Y.S.2d 727; Gerhardt v. New York City Tr. Auth., 8 A.D.3d 427, 427–428, 778 N.Y.S.2d 536; Matison v. County of Nassau, 290 A.D.2d 494, 495, 736 N.Y.S.2d 115; Lowry v. Suffolk County Water Auth., 287 A.D.2d 551, 552, 731 N.Y.S.2d 658; see also CPLR 5526). Since, under the circumstances presented here, the appendix is inadequate to enable this Court to render an informed decision on the merits, the appeals must be dismissed ( see Smith v. Imagery Media, LLC, 95 A.D.3d 1204, 1205, 945 N.Y.S.2d 133). SKELOS, J.P., DICKERSON, HALL and MILLER, JJ., concur.