| Maria E. Barbieri v Zachary H. Rebackoff |
| Motion No: 2012-00693 qc |
| Slip Opinion No: 2012 NY Slip Op 69994(U) |
| Decided on April 5, 2012 |
| Appellate Term, Second Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
of the State of New York for the 2nd, 11th & 13th judicial Districts
MICHAEL L. PESCE, P.J.
JOSEPH G. GOLIA
THOMAS P. ALIOTTA, JJ.
DECISION & ORDER ON MOTION
| Maria E. Barbieri, Respondent, v Zachary H. Rebackoff, Appellant. |
On the court's own motion, it is
ORDERED that this appeal from a judgment of the Civil Court of the City of New York, Queens County, entered September 22, 2011, is stricken from the general calendar and the matter is remitted to the Civil Court of the City of New York, Queens County (Jodi Orlow, 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 Civil Court's return 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]).
ENTER:
Paul Kenny
Chief Clerk