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Current Developments in the Commercial Divisions of the
New York State Courts
Posted: March 30, 2014

Appellant Sanctioned for Submitting Deficient Record on Appeal

On March 27, 2014, the First Department issued a decision in Getty Properties Corp. v. Getty Petroleum Marketing Inc., 2014 NY Slip Op. 02139, sanctioning a defendant that submitted a deficient record on appeal.

In Getty Properties, the First Department both denied the defendants’ appeal and sanctioned them for submitting a “deficient” record on appeal, writing:

The record filed by defendants’ attorney was so deficient as to amount to frivolous conduct (see 22 NYCRR 130-1.1[c][3]; Rogovin v. Rogovin, 27 AD3d 233 [1st Dept 2006]). By order entered December 12, 2013, we granted plaintiffs leave to file a supplemental appendix without prejudice to seeking costs and/or sanctions directly on the appeal. We remit the matter to Supreme Court to determine plaintiffs’ actual expenses of printing the supplemental appendix (see CPLR 5528[e]; Fidelity N.Y. v. Madden, 212 AD2d 572, 573-574 [2nd Dept 1995]; Mandell v Grosfeld, 65 AD2d 743 [1st Dept 1978]), as well as reasonable attorneys’ fees incurred in connection with plaintiffs’ motion to dismiss the appeal for the deficient appendix (see 22 NYCRR 130-1.1[c][3]; Rogovin, 27 AD3d at 235).

(Emphasis added).

To be sure, the cost of preparing the record in a complex case can be significant. This decision shows how not to handle the problem.

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