Dolen v. Pitt

• Decision Date: 02 October 1989
• Parties: Eric DOLEN, Respondent, v. Daniel PITT, Appellant.
• Court: New York County Court

Page 324

546 N.Y.S.2d 324

145 Misc.2d 227

Eric DOLEN, Respondent, v. Daniel PITT, Appellant.

Schoharie County Court.

Oct. 2, 1989.

James M. Bryant, for respondent.

Mid-Mohawk Legal Services, Inc., (Eliot King, of counsel), for appellant.

DECISION AND ORDER

DAN LAMONT, Judge.

Respondent moves to dismiss an appeal from the Justice Court, Town of Middleburgh (Nunamann, T.J.) in a summary eviction proceeding wherein respondent-landlord was granted a Judgment and Warrant of Eviction removing appellant-tenant from a mobile home park. For the reasons which follow, respondent's motion to dismiss the within appeal should be denied.

This summary proceeding was tried by the Justice Court, Town of Middleburgh On April 3, 1989, appellant-tenant filed a Notice of Appeal with the Justice Court, Town of Middleburgh and served a copy upon the attorney for petitioner-landlord.

                without a jury on March 2, 1989.   Stenographic notes were not taken.   On March 9, 1989, the Justice Court rendered a Decision in favor of petitioner-landlord, and a Judgment and Warrant of Eviction issued that same day
                

Uniform Justice Court Act § 1704(a) provides as follows:

"(a) 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 appellant. The appellant shall then procure the case to be settled on a written notice of at least three days to the clerk and to the respondent, 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 settlement on the return. In lieu of the judge settling the case and indorsing his settlement on the return, the parties may stipulate that the transcript together with the proposed amendments, if any, are correct. The clerk shall thereupon cause the return to be filed with the clerk of the appellate court." (emphasis supplied)

Since most Justice Court's do not have a clerk, the obligation to draw up a statement setting forth the substance of the proceedings and to prepare and file a return falls to the Justice himself under UCJA § 2101(f) (see "Practice Commentary" by Professor David D. Siegel: McKinney's Consolidated Laws: UCJA § 1704; Vol. 29A, Part 2, p. 249).

ISSUE PRESENTED

Should an appeal to County Court be dismissed when the Justice Court does not comply with the mandatory provisions of UCJA § 1704(a)?

CONCLUSIONS OF LAW

This Court holds and determines that the failure by the Justice Court, Town of Middleburgh to comply with the mandatory procedure set forth in UCJA § 1704(a) should not and cannot result in a dismissal of the appeal based upon appellant's failure to prosecute.

Nevertheless, this Court does hold and determine that the burden of compelling the preparation of the minutes of the proceedings by the Town Justice logically falls upon the appellant (see by way of analogy, Criminal Procedure Law § 460.10(3)(e)).

If the appellant persists in doing absolutely nothing to...