Cash v. Maggio

• Decision Date: 10 December 2012
• Citation: 957 N.Y.S.2d 596
• Parties: Tanya CASH, Claimant/Respondent, v. Sheryle MAGGIO, Defendant/Appellant.
• Court: New York County Court

957 N.Y.S.2d 596

Tanya CASH, Claimant/Respondent,

v.Sheryle MAGGIO, Defendant/Appellant.

County Court, Livingston County, New York.

Dec. 10, 2012.

Both claimant and defendant appeared pro se.

ROBERT B. WIGGINS, J.

This is a Justice Court appeal that was calendared for control to determine whether the appeal should be dismissed for failure to prosecute. This matter was originally brought by Claimant/Respondent, Tanya Cash, in the Conesus Town Court to recover a security deposit allegedly owed by Defendant/Appellant, Sheryle Maggio. Following two days of hearing, the Conesus Town Court entered a judgment on May 23, 2012 in favor of plaintiff in the amount of $600. Notably, the hearings were not recorded by a stenographer, but, rather, an electronic audio recording of the proceeding was made. On June 20th, 2012, Appellant filed a Notice of Appeal with the Livingston County Clerk, and contemporaneously served a copy upon Respondent. Thereafter, disagreements and confusion between the Appellant and the Conesus Town Court clerk arose over the proper perfection of the appeal. Appellant was told, by the Town Clerk as well as the Livingston County Supreme and County Clerk, that she needed to obtain a transcript of the proceedings, at her cost, in order to perfect the appeal. Further disputes arose over whether Appellant was entitled to a copy of the audio CD, in order to have it transcribed, as well as over payment for the CD and where it should be delivered, and these disputes led to considerable delay before transcripts were actually obtained at the end of September, 2012. There is some dispute over whether this delay is attributable to Appellant's own conduct, but, in light of other controlling legal issues as set forth below, that issue need not be resolved. It is undisputed that the court below, as well as the Livingston County Supreme and County Clerk's office, believed that the proper mode of perfecting this appeal was pursuant to those subdivisions of Uniform Justice Ct. Act § 1704 applicable to proceedings where "minutes were taken by a stenographer" ( § 1704[a] [2] ). That, however, was not the case; rather, the proceedings were electronically recorded, and "stenographic minutes were not taken" ( § 1704[a][1] ). Accordingly, in order for the appeal to be perfected, it was incumbent upon the Conesus Court Clerk in the first instance, not Appellant, to prepare the minutes of the proceedings (see § id. ). That was never done and, given the understandable confusion of both the lower court and the Court Clerk's office as to the proper mode of perfection, this Court can not deem Appellant responsible for the failure (see generally Dolen v. Pitt, 145 Misc.2d 227, 546 N.Y.S.2d 324 [Scoharie Co.Ct.1989] ).

II.

Perfection of Justice Court Appeals is governed primarily by Uniform Justice Ct. Act § 1704, which provides:

(a) 1. When an appeal has been taken, the stenographer's original transcript of minutes, if such minutes were taken, must be furnished to the clerk within ten days after the fees therefor have been paid. If testimony was given but stenographic minutes were not taken, the clerk shall prepare minutes of the proceedings within thirty days after the filing of the notice of appeal, such minutes to consist of a statement sufficiently descriptive of the testimony to make possible appellate review. Immediately upon receipt or preparation of the minutes, the clerk shall cause notice of that fact to be sent to the attorney for the appellant, or to the appellant if he or she has not appeared by attorney. If the clerk has prepared the minutes, he or she also shall cause copies thereof to be served upon the attorneys for the appellant and the respondent, or upon the appellant and the respondent if they do not appear by attorney.

2. (i) If minutes were taken by a stenographer, within fifteen days of receipt of a copy of the stenographic transcript of the minutes, the appellant or the appellant's attorney shall make any proposed amendments and cause them to be served, together with a copy of the transcript, on the attorney for the respondent, or on the respondent if he or she has not appeared by attorney. Within fifteen days after receipt of such service, the respondent or the respondent's attorney shall make any objections to the amendments proposed by the appellant and make such further proposed amendments to the transcript as are deemed necessary, and cause them

to be served on the attorney for the appellant, or on the appellant if he or she has not appeared by attorney.

(ii) If the clerk prepared the minutes, within fifteen days after the date of receipt of a copy of such minutes, the attorneys for the appellant and the respondent, or the appellant and the respondent if they have not appeared by attorney, shall forward to the court any proposed amendments to the minutes.

3. The appellant or his or her attorney shall then procure the case to be settled on a written notice of at least four days to the clerk and to the attorney for the respondent or to the respondent if he or she has not appeared by attorney, returnable before the justice who tried the case. The clerk shall thereupon prepare a return, which shall contain the summons or notice of petition, pleadings, evidence, judgment or order, notice of appeal, opinion of the court, if any, and all other papers necessary for appellate review of the judgment or order appealed from. Within five days after the return day of the notice to settle the case, the justice shall settle the same and indorse his or her settlement on the return. In lieu of the justice settling the case and indorsing his or her settlement on the return, the parties may stipulate that the transcript (or the minutes prepared by the clerk, if appropriate) together with the proposed amendments, if any, and all other elements of the return are correct. The clerk shall thereupon cause the return to be filed with the clerk of the appellate court.

(b) Where no testimony was taken, the return shall be filed with the clerk of the appellate court within ten days after the filing of the notice of appeal. Such return shall consist of the same papers and proceedings specified in subdivision (a), except for the minutes therein described. The authenticity of such papers shall be certified by the clerk.

(c) Upon an appeal from an order granting or denying a motion for a new trial upon the ground of fraud or newly discovered evidence, the minutes of the trial, as described in subdivision (a), shall be included in the return and the provisions of that subdivision shall apply to such an appeal.

As can be seen, under this section, there are two separate tracks for perfecting civil appeals from Justice Courts, depending on whether " minutes were taken by a stenographer" in the Justice Court ( § 1704[a] [1] ), or "whether testimony was given but stenographic minutes were not taken" ( § 1704[a][2][i] ). Where there are stenographic minutes, the initial burden is on the appellant to begin the process by ordering and paying for a transcript. Where there are no stenographic minutes, the initial burden is on the justice court clerk to "prepare minutes of the proceedings within thirty days after the filing of the notice of appeal, such minutes to consist of a statement sufficiently descriptive of the testimony to make possible appellate review." On the stenographic track, once the minutes are received, the clerk notifies the appellant, who begins the process of settling the transcript. On the non-stenographic track, once the clerk prepares the minutes, the clerk notifies the appellant and also must "cause copies [of the minutes] to be served upon the attorneys for the appellant and the respondent, or upon the appellant and the respondent if they do not appear by attorney" ( § 1704[a][1] ).

Notably, while criminal cases do not follow the exact same perfection process, the Criminal Procedure Law makes a virtually identical distinction between cases "in which the proceedings were recorded by a court stenographer" ( CPL 460.10[2] ) and those "in which the underlying proceedings were not recorded by a court stenographer" ( CPL 460.10[3] ). The distinction in criminal cases is even more crucial, because it determines not just the route for perfecting the appeal, but for actually taking the appeal, and appellate courts have much more "discretion to forgive defects and extend time" with respect to the perfecting phase, as opposed to the taking phase, where there is less "leeway" (Siegel, Supplemental Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 29A, pt. 2, Uniform Justice Ct. Act 1704 ).

As set forth above, the Town Court proceedings in this case were not transcribed by a court stenographer. Rather, the proceedings were recorded electronically, and an audio CD was made. This is an entirely proper mode of proceeding. 22 NYCRR 30.1, promulgated in 2006, expressly authorizes "the chief administrator of the courts [to] require the mechanical recording of testimony and of other proceedings in cases in a town or village justice court" (although the regulation also preserves the right of "the court or any litigant therein to employ a stenographer to take minutes of such proceedings manually" ). And in 2008, the Chief Administrative Judge issued Administrative Order 245/08, which "require[s] each town and village court of the Unified Court System to mechanically record all proceedings that come before that court."

The question then becomes what appeal perfection track (i.e. stenographic or non-stenographic) applies when audio recording is used. The plain language of the Uniform Justice Ct Act would point to the non-stenographic track, since no "minutes were taken by a stenographer" where the proceedings are recorded electronically. On the other hand, audio recording could be regarded as the functional equivalent of "minutes ... taken by a stenographer," particularly in light of the regulation and administrative order allowing (and...