APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

DECISION

On the court's own motion, the appeal is held in abeyance and the matter remitted to the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.) to report whether the testimony can be reconstructed, and, if so, to submit the reconstructed record (see Davis Bros. Eng'g Corp. v Ferraro, 297 AD2d 275 [2002]; Cassella v Manikas, 8 AD2d 587 [1959]). The Civil Court shall file its report and/or record with all convenient speed.

The present statement in lieu of transcript, though characterized as such, is "more properly the subject of an appeal brief" (Matter of Dyno v Village of Johnson City, 255 AD2d 737, 737 [1998]). Moreover, it does not summarize the testimony of the witnesses and thereby precludes meaningful appellate review of the underlying small claims judgment (see Rogers v Avgush, 17 Misc 3d 135[A], 2007 NY Slip Op 52266[U] [App Term, 1st Dept 2007]). "It is the duty of the Trial Judge to settle . . . a statement in lieu of a transcript pursuant to CPLR 5525 (d) in accordance with her recollection of what transpired at the trial" (Brandenburg v Brandenburg, 188 AD2d 368, 369 [1992]).