Aguiar-Consolo v City of New York
2014 NY Slip Op 00312 [113 AD3d 707]
January 22, 2014
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 5, 2014


Beatriz Aguiar-Consolo, Appellant,
v
City of New York et al., Respondents. (Action No. 1.) Robert Consolo, Jr., et al., Appellants, v City of New York et al., Respondents, and Beatriz Aguiar-Consolo, Appellant. (Action No. 2.)

[*1] Mark E. Feinberg, Brooklyn, N.Y. (Louis A. Badolato of counsel), for appellant in action No. 1 and defendant-appellant in action No. 2, and Raymond A. Raskin, Brooklyn, N.Y. (Louis A. Badolato of counsel), for plaintiffs-appellants in action No. 2 (one brief filed).

Jeffrey D. Friedlander, Acting Corporation Counsel, New York, N.Y. (Francis F. Caputo and Shannon Colabrese of counsel), for respondents in action Nos. 1 and 2.

In two related actions, inter alia, to recover damages for personal injuries, which were joined for trial, Beatriz Aguiar-Consolo, the plaintiff in action No. 1 and a defendant in action No. 2, appeals, and Robert Consolo, Jr., and Carina Consolo, the plaintiffs in action No. 2, separately appeal, from an order of the Supreme Court, Richmond County (Dollard, J.), dated April 21, 2011, which denied their joint motion pursuant to CPLR 4404 (a), inter alia, to set aside a jury verdict on the issue of liability as contrary to the weight of the evidence and for a new trial.

Ordered that the appeals are dismissed, with one bill of costs payable by the appellants.

" 'An appellant who perfects an appeal by using the appendix method must file an appendix that contains all the relevant portions of the record in order to enable the court to render an informed decision on the merits of the appeal' " (Grossman v Composto-Longhi, 96 AD3d 1000, 1001 [2012], quoting Gandolfi v Gandolfi, 66 AD3d 834, 835 [2009]; see Christian v Graham, 73 AD3d 676, 677 [2010]). "The appendix shall contain those portions of the record necessary to permit the court to fully consider the issues which will be raised by the appellant and the respondent" (22 NYCRR 670.10-b [c] [1]; see CPLR 5528 [a] [5]).

Here, the appellants seek review of an order which denied their joint motion pursuant to CPLR 4404 (a), inter alia, to set aside a jury verdict on the issue of liability as contrary to the weight of the evidence and for a new trial and, therefore, the appendix should have included the full trial transcript (see Kruseck v Ross, 82 AD3d 939, 940 [2011]; Gerhardt v New York City Tr. Auth., 8 AD3d [*2]427, 427-428 [2004]; Matison v County of Nassau, 290 AD2d 494, 495 [2002]; Lowry v Suffolk County Water Auth., 287 AD2d 551, 552 [2001]; see also CPLR 5526). Since, under the circumstances presented here, the appendix is inadequate to enable this Court to render an informed decision on the merits, the appeals must be dismissed (see Smith v Imagery Media, LLC, 95 AD3d 1204, 1205 [2012]). Skelos, J.P., Dickerson, Hall and Miller, JJ., concur.