Yanoff v. Commissioner of Education

64 A.D.2d 763, 407 N.Y.S.2d 261, 1978 N.Y. App. Div. LEXIS 12604

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 20, 1978
• Status: Published

Opinion

—Appeal from an order of the Supreme Court at Special Term, entered December 30, 1977 in Albany County, which settled the record on appeal. Petitioner seeks to include in the record on appeal two observation reports by Anthony Jacobelli, chairman of the board of education, which were not part of the record before the Commissioner of Education or the record before Special Term. The CPLR provides that 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 (CPLR 5526). The judgment roll consists of the summons, pleadings, admissions, each judgment and each order involving the merits or necessarily affecting the final judgment (CPLR 5017, subd [b]). Thus, the only arguable way that the two reports could properly be part of this record on appeal would be "as exhibits in the court of original instance”. However, the two subject reports were not offered and received in evidence. Accordingly, they may not be considered by this court as part of the record (cf. Tobin v Union News Co., 18 AD2d 243). Order affirmed, without costs. Mahoney, P. J., Greenblott, Sweeney, Main and Mikoll, JJ., concur.