Lo Gerfo v. Lo Gerfo

• Decision Date: 10 June 1968
• Citation: 30 A.D.2d 156,290 N.Y.S.2d 1005
• Parties: John LO GERFO, Anthony Lo Gerfo, Josephine Corsini and Maria Lobody, Appellants, v. Angela LO GERFO, also known as Angelina Lo Gerfo, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 1005

290 N.Y.S.2d 1005

30 A.D.2d 156

John LO GERFO, Anthony Lo Gerfo, Josephine Corsini and Maria Lobody, Appellants, v. Angela LO GERFO, also known as Angelina Lo Gerfo, Respondent.

Supreme Court, Appellate Division, Second Department.

June 10, 1968.

Lyman Stansky and Alan S. Marx, New York City, for respondent.

Morris Weissberg, New York City, for appellants.

Before BRENNAN, Acting P.J., and RABIN, HOPKINS, BENJAMIN and MARTUSCELLO, JJ.

PER CURIAM.

The appeal is from a judgment of the Supreme Court, Queens County, dated February 28, 1968, which, among other things, declared that the appellants were not entitled to an accounting and a distributive share of the property of Vincenzo Lo Gerfo, deceased, or of certain properties of Rosina Lo Gerfo, deceased. The appellants are prosecuting the appeal by the appendix method (CPLR 5528, 5529).

So far as may be determined from the appellants' brief (since the pleadings are not reproduced in their appendix), the appellants, four brothers and sisters of the respondent, brought this action to recover certain properties of their parents which it is claimed were transferred to the respondent without consideration or were unlawfully converted by her. The case was tried before the court without a jury.

The respondent has moved for an order (1) directing the appellants to file an appendix which will comply with the requirements of CPLR 5528 and 5529 and the Rules of this court of (2), in the alternative, adjourning the appeal to the September term, for which term the respondent would file an appendix. After the making of the motion the appeal appeared on the June term calendar of this court for argument and was then adjourned to the September term.

The respondent in her motion points out that the pleadings and the appellants' bill of particulars are not contained in the appendix, that the appendix condenses a transcript of the trial testimony, which consists of over 1100 pages, into 150 pages, and that the appellants have so arranged the reproduction of the transcript in the appendix that it is impossible to follow the testimony coherently or with understanding. In addition, the respondent contends that the appendix does not contain those parts of the record on which the appellant should reasonably assume the respondent would rely, as prescribed by CPLR 5528 (subd. (a), par. 5).

After examining the appendix and the appellants' brief, we find that the appendix does not comply with CPLR 5528 and 5529 and Rule XV of Part One of the Rules of this court. The appellants' brief consists of 11 points, in which, among other things, the appellants claim that the record establishes that the respondent committed acts of fraud and undue influence and abused her confidential relation to her parents in obtaining their properties. The appendix not only does not contain the testimony which relates to these claims, but so presents the excerpts of the testimony reproduced that they are rendered unintelligible. The testimony does not appear in context and is so studded with asterisks that no clear understanding of the testimony can be reached without a continuous reference to the complete transcript.

An appellate...