Chang Yeol Yang v A & C Egg Distribs., Inc.

[*1] Chang Yeol Yang v A & C Egg Distribs., Inc. 2010 NY Slip Op 50989(U) [27 Misc 3d 141(A)] Decided on June 4, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 4, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., PESCE and RIOS, JJ
2008-1929 RI C.

Chang Yeol Yang, Respondent,

against

A & C Egg Distributors, Inc., MYUNG OK CHON and JAE HO CHON, Appellants.

Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Mary Kim Dollard, J.), entered April 7, 2008. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $84,082.04, plus interest from June 1, 1998, and dismissed defendants' counterclaims.

ORDERED that the judgment is reversed without costs and the matter is remitted to the Civil Court for a new trial.

Plaintiff brought this action seeking the return of a down payment that he had paid defendants to purchase their egg-delivery business. Defendants counterclaimed for, among other things, breach of contract, conversion of their customer list and intentional interference with contractual relations. After a two-day nonjury trial, the Civil Court found in favor of plaintiff, awarding him the return of his down payment and interest as of June 1, 1998, and dismissing defendants' counterclaims.

On appeal, defendants argue, among other things, that the trial transcript is so deficient as to prevent adequate appellate review, and a new trial should be ordered. We agree.

The trial was recorded on a taping device and later transcribed. As defendants contend, the result is "virtually incomprehensible." There are over 600 omissions in the transcript where the reporter could not understand what the participants were saying, and it is not always clear who is speaking. In addition, an unknown amount of testimony is missing at points where the court had to change tapes, including plaintiff's direct examination being cut off in mid-sentence. Indeed, at oral argument on the appeal, both parties stated that they had objected to the transcript as inadequate.Therefore, we find that the transcript is inadequate to allow for proper appellate review, and a new trial is ordered. We note that, under the circumstances of this case, where it has been demonstrated that the recording of the testimony was inadequate for transcription, the Civil Court, upon the retrial, should consider using a court reporter.

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: June 04, 2010