Opinion
# 2014-041-055 Claim No. 113641 Motion No. M-85361
10-01-2014
REGINALD MCFADDEN v. THE STATE OF NEW YORK
REGINALD MCFADDEN Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Allyson B. Levine, Esq. Assistant Attorney General
Synopsis
Claimant's motion for an order settling the record on appeal is denied where claimant fails to submit a proposed record on appeal for the Court's review and consideration.
Case information
| UID: | 2014-041-055 |
| Claimant(s): | REGINALD MCFADDEN |
| Claimant short name: | MCFADDEN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 113641 |
| Motion number(s): | M-85361 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | REGINALD MCFADDEN Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Allyson B. Levine, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 1, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves "pursuant to CPLR 5532 (c) for an order to settle the record on appeal." Defendant opposes the motion, pointing out that claimant has failed to submit a proposed record on appeal for the Court's review and consideration.
Claimant previously moved (M-81772), pursuant to CPLR 3212, for summary judgment as to defendant's liability for three alleged assaults upon claimant by Clinton Correctional Facility officers and for negligent medical treatment following the alleged assaults.
The claimant's motion M-81772 was denied by Decision and Order of this Court, filed December 12, 2012.
Claimant filed a notice of appeal with respect to the Court's Decision and Order on motion M-81772 on January 4, 2013 and, according to defendant, has been unable to obtain defendant's stipulation to "the correctness and accuracy of [claimant's] proposed record . . . due to several significant deficiencies in the [proposed] record."
Claimant has failed to submit for the Court's review and consideration a proposed record on appeal in compliance with CPLR 5526 and his motion for an order settling the record is denied without prejudice (Matter of Weeden v Ark, 2 AD3d 1280 [4th Dept 2003]: "While '[e]very appellant has a clear legal right to settlement of the record' (Matter of Lavar C., 185 AD2d 36, 39 [1992]), that principle presupposes that an appellant has submitted a proposed record in compliance with CPLR 5526 and 22 NYCRR 1000.4, and petitioner failed to do so here").
The Court notes that claimant has the option, under CPLR 5532, of stipulating with defense counsel "as to the correctness of the entire record on appeal or any portion thereof in lieu of certification."
October 1, 2014
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion, filed July 14, 2014;
2. Affidavit of Reginald McFadden, sworn to July 8, 2014, and annexed exhibits;
3. Affirmation of Allyson B. Levine, dated August 12, 2014, and annexed exhibits;
4. Reply of Reginald McFadden, dated August 15, 2014, and annexed exhibits.