McKenzie v. Damazio

Appellate Terms of the Supreme Court of New York

McKenzie v. Damazio

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 29, 2017

Docket2017 NYSlipOp 51627(U)

StatusPublished

This text of McKenzie v. Damazio (McKenzie v. Damazio) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McKenzie v. Damazio, (N.Y. Ct. App. 2017).

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Opinion

Alfred McKenzie, Petitioner-Landlord-Appellant,

against

Akanni Damazio, Respondent-Tenant-Appellant.

Tenant appeals from a final judgment of the Civil Court of the City of New York, Bronx County (Elizabeth J. Yalin Tao, J.), entered September 14, 2016, after a nonjury trial, which awarded possession to landlord in a holdover summary proceeding.

Per Curiam.

Appeal from final judgment (Elizabeth J. Yalin Tao, J.), entered September 14, 2016, dismissed, without costs, and without prejudice to renewal upon a proper record.

Meaningful appellate review of the underlying final judgment is precluded in view of the incomplete nature of the trial transcript, which contains numerous "inaudible" gaps in the testimony of each witness (see Rogers v Avgush, 17 Misc 3d 135[A], 2007 NY Slip Op 52266[U] [App Term, 1st Dept 2007]; C.F.C. Commercial Flooring Contrs., Inc. v Sachs, 9 Misc 3d 128[A], 2005 NY Slip Op 51524[U] [App Term, 9th and10th Jud Dists 2005]). It is the appellant's obligation to prepare and submit a record on appeal that complies with the requirements of CPLR 5526. Appeals that are not based upon a proper record must be dismissed (see Fernald v Vinci, 13 AD3d 333 [2004]; see also Glicenstein v Fust, 19 AD2d 841 [1963]). Our disposition is without prejudice to renewal of the appeal upon a reconstructed record.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: November 29, 2017

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Alfred McKenzie, Petitioner-Landlord-Appellant,

against

Akanni Damazio, Respondent-Tenant-Appellant.

Tenant appeals from a final judgment of the Civil Court of the City of New York, Bronx County (Elizabeth J. Yalin Tao, J.), entered September 14, 2016, after a nonjury trial, which awarded possession to landlord in a holdover summary proceeding.

Per Curiam.

Appeal from final judgment (Elizabeth J. Yalin Tao, J.), entered September 14, 2016, dismissed, without costs, and without prejudice to renewal upon a proper record.

Meaningful appellate review of the underlying final judgment is precluded in view of the incomplete nature of the trial transcript, which contains numerous "inaudible" gaps in the testimony of each witness (see Rogers v Avgush, 17 Misc 3d 135[A], 2007 NY Slip Op 52266[U] [App Term, 1st Dept 2007]; C.F.C. Commercial Flooring Contrs., Inc. v Sachs, 9 Misc 3d 128[A], 2005 NY Slip Op 51524[U] [App Term, 9th and10th Jud Dists 2005]). It is the appellant's obligation to prepare and submit a record on appeal that complies with the requirements of CPLR 5526. Appeals that are not based upon a proper record must be dismissed (see Fernald v Vinci, 13 AD3d 333 [2004]; see also Glicenstein v Fust, 19 AD2d 841 [1963]). Our disposition is without prejudice to renewal of the appeal upon a reconstructed record.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: November 29, 2017

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McKenzie v. Damazio, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckenzie-v-damazio-nyappterm-2017.

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