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SIGNIFICANT GAPS IN THE STENOGRAPHIC RECORD, COUPLED WITH THE DEATH OF THE STENOGRAPHER AND THE INABILITY TO RECONSTRUCT THE RECORD, REQUIRED A NEW TRIAL (SECOND DEPT).

The Second Department determined a new trial was the only option where the stenographic record of the trial was incomplete and could not be reconstructed. Plaintiff’s motion to set aside the verdict, therefore, could not be entertained. Apparently the stenographer had fallen asleep during testimony and subsequently died:

After the jury returned a verdict in favor of the defendants on the issue of liability, the plaintiff moved pursuant to CPLR 4404(a) to set aside the verdict and for a new trial, on the grounds that the trial could not be transcribed and that the verdict was contrary to the weight of the evidence. A senior court reporter submitted an affidavit in connection with the motion in which she stated that the court reporter who was assigned to the trial had died, and that there were “significant gaps in [that court reporter’s] notes which rendered the trial unable to be transcribed.” …

A stenographic transcript is an aid to the judge, who is tasked with the final responsibility to certify the record (see CPLR 5525[c], [d]). The parties may agree on a statement in lieu of a transcript and the court may adopt, according to its own recollection, a statement in lieu of transcript submitted by one of the parties … . However, when no agreement and no reconstruction is possible, a new trial is required. Indeed, in civil cases, where a stenographer dies or is no longer in possession of minutes and the minutes cannot be obtained, meaningful appellate review is impaired and a new trial should be ordered if reconstruction is not possible … . Monaco v New York City Tr. Auth., 2017 NY Slip Op 06178, Second Dept 8-16-17

 

CIVIL PROCEDURE (SIGNIFICANT GAPS IN THE STENOGRAPHIC RECORD, COUPLED WITH THE DEATH OF THE STENOGRAPHER AND THE INABILITY TO RECONSTRUCT THE RECORD, REQUIRED A NEW TRIAL (SECOND DEPT))/STENOGRAPHIC RECORD (SIGNIFICANT GAPS IN THE STENOGRAPHIC RECORD, COUPLED WITH THE DEATH OF THE STENOGRAPHER AND THE INABILITY TO RECONSTRUCT THE RECORD, REQUIRED A NEW TRIAL (SECOND DEPT))/VERDICT, MOTION TO SET ASIDE (CIVIL PROCEDURE, SIGNIFICANT GAPS IN THE STENOGRAPHIC RECORD, COUPLED WITH THE DEATH OF THE STENOGRAPHER AND THE INABILITY TO RECONSTRUCT THE RECORD, REQUIRED A NEW TRIAL (SECOND DEPT))

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