Lynch v Consolidated Edison, Inc.

Lynch v Consolidated Edison, Inc. 2011 NY Slip Op 01595 Decided on March 3, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 3, 2011
Mazzarelli, J.P., Acosta, DeGrasse, Richter, Manzanet-Daniels, JJ.
4424 109339/07

[*1]Denise Lynch, et al., Plaintiffs-Appellants,

v

Consolidated Edison, Inc., Defendant-Respondent, Nico Asphalt, Inc., Defendant.




Morton Povman, P.C., Forest Hills (Bruce Povman of counsel),
for appellants.
Richard W. Babinecz, New York (Helman R. Brook of counsel),
for respondent.

Appeal from order, Supreme Court, New York County (Harold B. Beeler, J.), entered December 16, 2009, which denied plaintiffs' motion to set aside the jury's verdict and order a new trial on liability and damages as to defendant Consolidated Edison, Inc. (Con Ed), unanimously dismissed, without costs, for failure to perfect the appeal in accordance with the CPLR and the rules of this Court.

Plaintiff Denise Lynch was injured when she tripped on a defect on a roadway in the area of a manhole cover. Approximately one month before the accident, defendant Nico Asphalt, which was hired by Con Ed, re-paved the area surrounding the manhole cover. The jury found that the area surrounding the manhole cover was not in a reasonably safe condition, but that Nico Asphalt was not negligent in paving the area. Due to the configuration of the verdict sheet, the jury then concluded its deliberations without reaching the issue of Con Ed's liability.

The appeal is dismissed because plaintiff failed to assemble a proper record on appeal, including the trial transcript and the minutes of the charge conference (see Sebag v Narvaez, 60 AD3d 485 [2009], lv denied 13 NY3d 711 [2009]; CPLR 5526; Rules of App Div, 1st Dept [22 NYCRR] § 600.5). Without the benefit of a proper record, this Court cannot "render an informed decision on the merits" (Matison v County of Nassau, 290 AD2d 494, 495 [2002]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 3, 2011 [*2]

CLERK