March 8, 2019

Gordon v Geico Ins. Co. (2019 NY Slip Op 29072)


The court considered the fact that defendant Geico Insurance Company failed to appear for a conference, leading the court to dismiss the plaintiff's complaint for failure to meet the burden of proof. The main issue decided in the case was whether the plaintiff met the burden of proof in the absence of the defendant at the conference. The court held that the plaintiff did not meet the burden of proof and dismissed the complaint.

Reported in New York Official Reports at Gordon v Geico Ins. Co. (2019 NY Slip Op 29072)

Gordon v Geico Ins. Co. (2019 NY Slip Op 29072)
Gordon v Geico Ins. Co.
2019 NY Slip Op 29072 [63 Misc 3d 621]
March 8, 2019
Ramseur, J.
Civil Court of the City of New York, New York County
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 15, 2019


Johnnie Gordon, Plaintiff,
Geico Insurance Co., Defendant.

Civil Court of the City of New York, New York County, March 8, 2019


Johnnie Gordon, plaintiff pro se.

{**63 Misc 3d at 621} OPINION OF THE COURT

Dakota D. Ramseur, J.

After an inquest held on December 1, 2017, upon defendant Geico Insurance Company’s failure to appear for a conference,{**63 Misc 3d at 622} the court dismissed plaintiff Johnnie Gordon’s complaint for failure to meet the burden of proof (22 NYCRR 208.14 [b] [1] [“At any scheduled call of a calendar or at a pretrial conference . . . (i)f the plaintiff appears but the defendant does not, the judge may grant judgment by default or order an inquest”]; 22 NYCRR 208.32).[FN*] Plaintiff then filed a notice of appeal and sought settlement of the transcript. Because the proposed changes did not accurately transcribe what occurred at the inquest, the court declined to sign the Clerk’s return on appeal (see CIV-GP-44 [2000]).

Plaintiff has now submitted a second errata sheet dated January 10, 2019, again proposing changes to the transcript which would not reflect statements made at inquest and, in some instances, alter the meaning of what was said on the record. For the reasons below, the court memorializes its first denial and denies the second set of proposed amendments.

CPLR 5525 (c) (1) provides that

“[w]ithin fifteen days after receiving the transcript from the court reporter . . . , the appellant shall make any proposed amendments and serve them and a copy of the transcript upon the respondent. Within fifteen days after such service the respondent shall make any proposed amendments or objections to the proposed amendments of the appellant and serve them upon the appellant. At any time thereafter and on at least four days’ notice to the adverse party, the transcript and the proposed amendments and objections thereto shall be submitted for settlement to the judge or referee before whom the proceedings were had if the parties cannot agree on the amendments to the transcript. The original of the transcript shall be corrected by the appellant in accordance with the agreement of the parties or the direction of the court and its correctness shall be certified to thereon by the parties or the judge or referee before whom the proceedings were had. When he [*2]serves his brief upon the respondent the appellant shall also serve a conformed copy of the transcript or deposit it in the office of the clerk of the court of original instance who shall make it available to respondent.”

CPLR 5525 (c) (3) provides that an appellant{**63 Misc 3d at 623}

“shall serve on respondent together with a copy of the transcript and the proposed amendments, a notice of settlement containing a specific reference to subdivision (c) of this rule, and stating that if respondent fails to propose amendments or objections within [15 days of service], the provisions of [CPLR 5525 (c) (2)] shall apply.”

CPLR 5525 (c) (2), in turn, provides that

“[i]f the appellant has timely proposed amendments and served them with a copy of the transcript on respondent, and no amendments or objections are proposed by the respondent within the time limited by paragraph 1, the transcript, certified as correct by the court reporter, together with appellant’s proposed amendments, shall be deemed correct without the necessity of a stipulation by the parties certifying to its correctness or the settlement of the transcript by the judge or referee. The appellant shall affix to such transcript an affirmation, certifying to his compliance with the time limitation, the service of the notice provided by paragraph 3 and the respondent’s failure to propose amendments or objections within the time prescribed.”

With respect to both the first and second errata sheets, the court is unable to discern the reason for defendant having failed to object. It may be because defendant did not receive a copy of the transcript; that is, plaintiff sent a copy of the transcript to defendant; that is, plaintiff’s affiant Robert Wilson, in affidavits dated December 14, 2018, and January 22, 2019, only testifies to actually serving the transcript on the earlier date. Moreover, both list defense counsel’s service address as 2 Huntington Quadrangle, Suite 2N01, Melville, New York 11747, not the address of record, 170 Froehlich Farm Boulevard, Woodbury, New York 11797. Finally, it is unclear what defendant would be able to object to—indeed, the very reason that the inquest went forward was defendant’s absence.

In any event, however, even if plaintiff complied with all of CPLR 5525 (c)’s technical requirements, the court would nevertheless be compelled to deny the proposed amendments. CPLR 5525 (c) invokes, at multiple junctures, the “correctness” of the record—in the context of a stenographic record, the accuracy for the purposes of appellate review (see e.g. Ayton v Bean, 92 AD2d 577, 578 [2d Dept 1983] [“by permitting the affidavit of service and the acknowledgement of service to be included in{**63 Misc 3d at 624} the record, Special Term was not correcting or reforming an old record in order to indicate the true facts appearing before it at the time of its original determination but it was, in fact, making an entirely new record. To allow this type of amendment at this stage of the proceeding ‘would be setting a precedent which would lead to great embarrassment in our practice and injustice to parties’ ”]; Yaretsky v Blum, 629 F2d 817, 822-823 [2d Cir 1980] [“The chief purpose of the state statutory requirement that a complete electronic or stenographic record of the hearing be kept appears to be to allow judicial review in a proceeding under (CPLR article 78)”], revd on other grounds 457 US 991 [1982]; cf. Van Valkenburgh v Bourne, 26 AD2d 727, 727 [3d Dept 1966] [permitting addition of statement made in unrecorded summation to the effect that plaintiff had “flunked his driver’s test” where defendant’s counsel conceded that the summation language was “similar in import to the quoted words”]). The very purpose of appellate review is the correction of any errors based on the record; to that end, CPLR 5525 must ensure that the appellate court is reviewing the record as it actually occurred, not as a party believes it should have.

When plaintiff first proposed amendments on or about December 17, 2018, plaintiff’s “Notice of Settlement of Transcript,” apparently sent to respondent/appellee Geico, was accompanied by a five-page errata sheet listing numerous proposed amendments. Numerous amendments materially changed not only plaintiff’s testimony, but the court’s statements and conclusions on the record. For example:

Transcript (2:1): You have an order to show cause that was granted on default. You wanted to amend the complaint to include some medical service and alleged days out of work. So, this is an inquest.
“(Plaintiff) Okay.
“(Court) Apparently, this case was on for a conference and now I’m told it’s an inquest. During an inquest you can present your evidence as you would like the court to hear it.
Proposed change: A Conference is on the calendar. The Defendant is a No show. The court will proceed instead on an Inquest. Later a default judgment is granted in favor of Plaintiff . . .
Transcript (5:17-23): (Plaintiff) This is based on—initially, I was paid for during the time I was{**63 Misc 3d at 625} injured for medical treatment up until May 4th of 2013. This is being submitted because I continued treatment, it was necessary to have further treatment up until December 29th, I mean, December 29th of 2015.
Proposed change: (Gordon) I was not paid for Medical Treatments during the time I was injured in an auto accident. My medical treatments were not paid for at all by my No-Fault auto insurer, Geico (not paid from date of accident to the date of last treatments which is 12/01/2012 through 12/29/2015).”

The second errata sheet proposed similar amendments (proposed change underlined):

Transcript (6:24): (Plaintiff) This document [from the social security administration] shows that they’re demanding income to be reimbursed from Geico for the treatment periods that I was—it does establish the times that I was treated and had loss of income.
Proposed change: (Plaintiff) This document [from the social security administration] shows that they’re demanding medical costs to be reimbursed from Geico for the treatment periods that I was—it does establish the times that I was treated and had loss of income . . .
Transcript (6:24): (Court) You can appeal my decision once you get a decision from me based on this inquest.
Proposed change: (Court) You can appeal my decision once you get a decision from me based on this conference.”

In the case of both the first and second errata sheets, the other proposed amendments are similar. Even if they do not, as in the examples above, profoundly alter the meaning of the statements made on the record, the proposed changes nevertheless fail to accurately reflect what was said. Accordingly it is hereby ordered that amendment of the transcript of the December 1, 2017 court proceedings (Vanessa M. Castillo, Court Reporter) pursuant to plaintiff’s November 24, 2018, and January 10, 2019, errata sheets is hereby denied; and it is further ordered that said transcript shall be settled as currently transcribed.


Footnote *:The court also denied several subsequent orders to show cause to reargue and/or renew.