Ernest LL v. Rosemary LL

Appellate Division of the Supreme Court of New York

Ernest LL v. Rosemary LL

50 A.D.2d 706, 375 N.Y.S.2d 495, 1975 N.Y. App. Div. LEXIS 12576

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 28, 1975

StatusPublished

Cited by7 cases

This text of 50 A.D.2d 706 (Ernest LL v. Rosemary LL) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ernest LL v. Rosemary LL, 50 A.D.2d 706, 375 N.Y.S.2d 495, 1975 N.Y. App. Div. LEXIS 12576 (N.Y. Ct. App. 1975).

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Opinion

[707]*707—Appeal from an order of the Family Court, Sullivan County, entered July 18, 1975, which awarded custody of the parties’ children to the respondent wife. In this custody proceeding there was an extended trial, with some 14 persons being called as witnesses. The minutes of the trial were not transcribed by an official court reporter and, by the parties’ own admissions, the transcript is not representative of the actual statements made on the record and is replete with errors and omissions. The transcript is the only part of the record on appeal that establishes what actually transpired during a trial. Since an appellate court does not ordinarily consider matters outside the record, the Trial Judge and the parties must be careful to insure that the transcript reflects all matters which they might wish to urge on appeal and is not deficient or incomplete in any way. Ordinarily, any errors, omissions or deficiencies in the transcript may be corrected either by an agreement of the parties to amend the transcript or by settlement of the transcript by the Trial Judge (CPLR 5525; 22 NYCRR 800.19). Here, it appears that neither agreement nor settlement can cure the numerous errors, mistakes and omissions in the transcript. The question of custody is ordinarily a matter of discretion for the trial court so long as there is a sound and substantial basis for the determination (Matter of Darlene T, 28 NY2d 391, 395). As a result of the deficiencies in the present transcript, however, we cannot fairly assess the basis of the Trial Judge’s determination. Meaningful appellate review is, therefore, impossible. Accordingly, the order appealed from must be reversed and a new trial ordered (see, Esposito v Herrschañ, 13 AD2d 656). Judgment reversed, on the law, without costs, and a new trial ordered. Sweeney, J. P., Kane, Koreman, Main and Larkin, JJ., concur.

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[707]*707—Appeal from an order of the Family Court, Sullivan County, entered July 18, 1975, which awarded custody of the parties’ children to the respondent wife. In this custody proceeding there was an extended trial, with some 14 persons being called as witnesses. The minutes of the trial were not transcribed by an official court reporter and, by the parties’ own admissions, the transcript is not representative of the actual statements made on the record and is replete with errors and omissions. The transcript is the only part of the record on appeal that establishes what actually transpired during a trial. Since an appellate court does not ordinarily consider matters outside the record, the Trial Judge and the parties must be careful to insure that the transcript reflects all matters which they might wish to urge on appeal and is not deficient or incomplete in any way. Ordinarily, any errors, omissions or deficiencies in the transcript may be corrected either by an agreement of the parties to amend the transcript or by settlement of the transcript by the Trial Judge (CPLR 5525; 22 NYCRR 800.19). Here, it appears that neither agreement nor settlement can cure the numerous errors, mistakes and omissions in the transcript. The question of custody is ordinarily a matter of discretion for the trial court so long as there is a sound and substantial basis for the determination (Matter of Darlene T, 28 NY2d 391, 395). As a result of the deficiencies in the present transcript, however, we cannot fairly assess the basis of the Trial Judge’s determination. Meaningful appellate review is, therefore, impossible. Accordingly, the order appealed from must be reversed and a new trial ordered (see, Esposito v Herrschañ, 13 AD2d 656). Judgment reversed, on the law, without costs, and a new trial ordered. Sweeney, J. P., Kane, Koreman, Main and Larkin, JJ., concur.

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Bluebook (online)

50 A.D.2d 706, 375 N.Y.S.2d 495, 1975 N.Y. App. Div. LEXIS 12576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ernest-ll-v-rosemary-ll-nyappdiv-1975.

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