Employers Mutual Liability Insurance v. Insurance Co. of North America

Abraham N. Geller, J.

Appellant has submitted a record on appeal containing the usual stipulation settling the case signed by the attorneys, and the order settling the case and the order directing the filing of the record with the Clerk of the Appellate Division, both of which are to be signed by the Trial Judge.

I have signed the proposed orders as contained in the record. However, counsel should note for future reference that subdivision (c) of rule 5525 of the Civil Practice Law and Rules “ Settlement of transcript ”, which provides for settlement by the Trial Judge of proposed amendments to the transcript and objections thereto “if the parties cannot agree on the amendments to the transcript ’ ’, requires that the transcript .shall be corrected “ in accordance with the agreement of the parties or the direction of the court ’ ’ and that its correctness shall be certified to thereon “ by the parties or the judge ” (emphasis added). Thus, whether the appeal is prosecuted upon a record as now permitted under the appendix system or on an optional full record containing a completely reproduced record on appeal, there is no longer any requirement or, indeed, provision for settlement of the case or transcript by the Judge, if the parties stipulate to the settlement of the transcript and certify to the correctness thereof.

Nor is there any requirement or provision for an order of the Trial Judge directing the filing of the record on appeal with the Clerk of the Appellate Division. Subdivision (a) of rule 5530 of the Civil Practice Law and Rules provides that within 20 days after settlement of the transcript the appellant shall file the record on appeal with the Clerk of the court to which the appeal is taken.

It should be noted that the Rules of the Appellate Division, First Department, pursuant to the authority conferred by subdivision (e) of rule 5525 upon the Appellate Division in each Department to prescribe other limitations of time different from those provided in the Civil Practice Law and Rules with respect to the service and filing of transcripts, amendments and records on appeal, provided as follows: under the appendix system, appellant shall subpoena from the Clerk of the court from which the appeal is taken the papers constituting .the record on appeal within 30 days after settlement of the transcript or he may elect to file six typewritten copies of the record on appeal in lieu thereof; and if he elects to proceed on a completely reproduced record on appeal, a copy of the record, duly certified by the Clerk or by the attorney as provided in section 2105 of the Civil Practice Law and Rules, shall be filed within 30 days after settlement of the transcript.

Section 10003 of the Civil Practice Law and Rules states that the Civil Practice Law and Rules shall apply not only to actions thereafter commenced but also to all further proceedings in pending actions. Accordingly, appeal proceedings taken with respect to pending actions are covered by the appeal provisions in the Civil Practice Law and Rules as modified by the Rules of the Appellate Division.

It will be noted that the design of these provisions is that the parties shall themselves settle and certify the record on appeal unless they cannot agree, and that the Trial Judge shall be called upon to do so only in the event of their disagreement.