APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

DECISION

Motion by appellant to, in essence, reargue the order of this Court dated November 20, 2007 or, in the alternative, for leave to appeal to the Appellate Division, denied.

As stated in the court's prior order, appellant's appeal has not been dismissed by this court. Rather, it has been stricken from the general calendar because the record is incomplete. The briefs will be accepted only when the minutes of the trial are properly settled.

The order appealed from states unequivocally that respondent's motion to dismiss was granted after appellant presented its prima facie case at a trial on June 21, 2006. Typically, the transcript of a trial must be furnished to this court (see CCA 1704 [a]). As appellant has demonstrated that no stenographic transcript exists, appellant must, pursuant to CPLR 5525(d), serve respondent and submit to the court below a statement in lieu of a stenographic transcript. It is appellant's responsibility to prepare this document using the best available sources (id.).

The notice of appeal, which appellant was required to serve and file pursuant to CPLR 5515, and which appellant did indeed serve and file, is merely a paper designating "the party taking the appeal, the judgment or order... appealed from and the court to which the appeal is taken" (id.). It does not satisfy the requirement of a statement in lieu of a stenographic transcript required for appellant to perfect his appeal.

Upon the furnishing of a complete record to this court, the matter will be restored to the general calendar.

The Appellate Division cannot review orders of this court that do not determine appeals (see CPLR 5501 [c]). As this court has not yet determined appellant's appeal, and cannot do so until the record is perfected, his request for leave to appeal to the Appellate Division is denied.