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Only Documents Relevant to the Order/Judgment Appealed from Should Be in the Record on Appeal—Motion to Settle the Record Denied

The Third Department affirmed Supreme Court’s denial of plaintiff’s motion to settle the record (on appeal) by adding documents (which were deemed not relevant to the appeal). The court described the required contents of the record:

Consistent with the provisions of CPLR 5526, “the record on appeal from a final judgment shall consist of a notice of appeal, the judgment roll, the transcript or a statement in lieu of a transcript if there was a trial or hearing, any exhibits in the court of original instance, any other reviewable order and any opinion in the case” … . The judgment roll, in turn, shall contain, among other things, “the summons, pleadings, admissions, each judgment and each order involving the merits or necessarily affecting the final judgment” (CPLR 5017 [b]…). As a result, “[d]ocuments or information that were not before [the trial court] cannot be considered by this Court on appeal” .. . Here, Supreme Court expressly found that the five documents at issue were neither considered in conjunction with nor relevant to the issues that gave rise to its … order and judgment… . Xiaoling Shirley He v Xiaokang Xu, 2015 NY Slip Op 06385, 3rd Dept 7-30-15

 

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DEFENDANT IS ENTITLED TO CONSIDERATION WHETHER HE SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS, DESPITE HIS WAIVER OF APPEAL; THE ISSUE HERE WAS RAISED AFTER THE COMPLETION OF THE APPEALS PROCESS BY A MOTION FOR A WRIT OF CORAM NOBIS (THIRD DEPT).
FINDING THAT PETITIONER POSSESSED A WEAPON FOUND IN A CUBE SHARED WITH OTHER INMATES NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED (THIRD DEPT).
THE INSURER PRESENTED EVIDENCE THE BOARD’S RULING THAT THE INSURER WAS THE RESPONSIBLE CARRIER WAS BASED UPON FRAUDULENT DOCUMENTATIOIN; IT WAS ABUSE OF DISCRETION TO DENY THE INSURER’S APPLICATION FOR REVIEW (THIRD DEPT).
PROPERTY OWNERS’ FRAUD AND OFFICIAL MISCONDUCT COUNTERCLAIM SHOULD HAVE BEEN DISMISSED IN THIS ACTION BY THE TOWN ALLEGING ZONING VIOLATIONS.
Annexation of Petitioners’ Land (Located in the Town) by the City Deemed in the Overall Public Interest
THE THIRD DEPARTMENT JOINS THE OTHER DEPARTMENTS IN HOLDING THAT A PLAINTIFF NEED NOT MAKE A MOTION TO SET ASIDE THE VERDICT TO PRESERVE AN “AGAINST THE WEIGHT OF THE EVIDENCE” ARGUMENT ON APPEAL (THIRD DEPT). ​
DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE BECAUSE THE VICTIM WAS NEARLY 17 AND NO FORCE WAS INVOLVED (THIRD DEPT).

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