Balan v Suk Hay Mui

[*1] Balan v Suk Hay Mui 2007 NY Slip Op 50878(U) [15 Misc 3d 137(A)] Decided on April 26, 2007 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 26, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2006-658 Q C.

Maria Balan, Respondent,

against

Suk Hay Mui, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Gerald J. Dunbar, J.), entered February 23, 2006. The order denied defendant's motion for a new trial.

Order affirmed without costs.

Plaintiff commenced this small claims action in August 2004, seeking compensation for alleged rent overcharges. A trial was held, and the court awarded plaintiff the principal sum of $5,000 by judgment entered August 16, 2005. Defendant took an appeal from that judgment (No. 2005-1639 Q C), but has not perfected the appeal because the recording of the trial was inaudible and a transcript could not be
produced. Defendant moved, in February 2006, for a new trial, arguing that the result in the first trial was error, that the judgment could not be appealed because of the lack of a transcript, and that because the result was wrong and unfair, a new trial should be had. Defendant annexed, inter alia, a copy of a letter from the typing service to which the trial tapes were submitted, stating that "The tape for the above referenced matter could not be transcribed. No one was near the microphone and the sounds were muffled and mostly inaudible." Defendant further sought to transfer the case to another county for retrial. The court denied the motion "with leave to remove if the Appellate Term should order a new trial."

The court below properly held that no grounds for a retrial had been shown. In essence, defendant made a post-judgment motion for a new trial, but did so in the hope, expressed in the motion papers, of obtaining an outcome in such a new trial that could be reviewed by an appellate court if necessary, which review had proved to be, so far, impossible following the first trial. However, defendant's remedy is not to move for a new trial in the lower court, but rather to seek reconstruction of the record. In the event that reconstruction is not possible, defendant may then move in this court for a summary reversal of the judgment upon the ground that there can be [*2]no meaningful appeal.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 26, 2007