Shillingford v Saxe

[*1] Shillingford v Saxe 2013 NY Slip Op 50266(U) Decided on February 21, 2013 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 21, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
571063/12.

Ella Shillingford, Plaintiff-Appellant,

against

Phyllis Saxe, Defendant-Respondent.

Plaintiff appeals from an order of the Small Claims Part of the Civil Court of the City of New York, New York County (Andrea Masley, J.), dated August 15, 2012, which denied her motion, in effect, to vacate a judgment in favor of defendant dismissing the action.

Per Curiam.
Order (Andrea Masley, J.), dated August 15, 2012, reversed, without costs, motion granted and matter remanded to Civil Court for an inquest.
Upon defendant's failure to appear in this small claims action, the court referred the matter to a referee to hold an inquest, and to hear and report her findings to the court (see CPLR 3215[b]). Following the inquest, the referee issued a "report" that consisted merely of a check mark placed in a box on a preprinted form signifying that the case was "Dismissed." So far as shown, no "findings of facts [or] conclusions of law" (CPLR 4320[b]) were made by the referee, nor were the inquest proceedings transcribed (id.). In this posture, and since the sorry state of the record precludes any effective appellate review of the matter, we are constrained to order a new inquest (see Murphy v Murphy, 144 AD2d 904 [1988]; Hynard v Apt., Inc., 2001 NY Slip Op 40561[U][App Term, 1st Dept 2001]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 21, 2013