On refusing to sign a transcript: CPLR 2219 and Art 78

Charalabidis v Elnagar, 188 AD3d 44 [2d Dept 2020]

The plaintiffs’ efforts to require the Supreme Court to sign the transcript or order were in the nature of mandamus, to compel the court to perform a ministerial act for which there was a clear right (see CPLR 7801; Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12, 16 [1981]; Matter of State of New York v King, 36 NY2d 59, 62-63 [1975]; Matter of McClam v Corrigan, 171 AD3d 1069 [2019]; Matter of Jacobs v Parga, 98 AD3d 741 [2012]). In analogous circumstances, mandamus has been specifically applied to compel the determination of outstanding motions (see Matter of Weinstein v Haft, 60 NY2d 625, 627 [1983]; Matter of Liang v Hart, 132 AD3d 765 [2015]; Jacobs v Parga, 98 AD3d at 741; Matter of Law Offs. of Russell I. Marnell, P.C. v Blydenburgh, 26 AD3d 495, 496 [2006]; Matter of DeCintio v Cohalan, 18 AD3d 872 [2005]; Matter of Beekman Paper Co. v Fingerhood, 163 AD2d 238 [1990]; Matter of Silk & Bunks v Greenfield, 102 AD2d 734 {**188 AD3d at 54}[1984]; c.fMatter of Grisi v Shainswit, 119 AD2d 418, 420 [1986]). However, unlike in all of the foregoing reported cases, the plaintiffs here never actually commenced a proceeding pursuant to CPLR article 78 in the nature of mandamus against the Justice, and the statute of limitations has since expired (see CPLR 217 [1]; Matter of Level 3 Communications, LLC v DeBellis, 72 AD3d 164, 173-174 [2010]; Matter of Zupa v Zoning Bd. of Appeals of Town of Southold, 64 AD3d 723, 725 [2009]). A proceeding pursuant to CPLR article 78 must be commenced, as relevant here, within four months “after the respondent’s refusal, upon the demand of the petitioner or the person whom he [or she] represents, to perform its duty” (CPLR 217 [1]). Here, in an order entered December 19, 2017, the court denied that branch of the plaintiffs’ motion which was pursuant to CPLR 2219 and 22 NYCRR 202.48 to compel the court to sign and issue an appealable paper. Therefore, the plaintiffs were required to commence a proceeding pursuant to CPLR article 78 in the nature of mandamus against the Justice no later than April 19, 2018, and that deadline is now long passed. This Court understands the reluctance of the trial bar to ever commence such proceedings against the judges and justices assigned to their cases. However, (absent meaningful assistance from the district administrative judge) under the circumstances present here, where the plaintiffs made several unsuccessful attempts to obtain an appealable paper, their only alternative was to commence a proceeding pursuant to CPLR article 78 in the nature of mandamus if the plaintiffs wished to proceed with an appeal challenging the court’s failure to provide them with an appealable paper.

Absent a proceeding pursuant to CPLR article 78, the plaintiffs can receive no relief on this appeal. This Court cannot compel under the guise of CPLR 2219 (a) and 22 NYCRR 202.48 relief that can only be properly accomplished by mandamus, which is now untimely.

IV. Miscellaneous

The requirements of CPLR 2219 should not be confused with the separate requirements of CPLR 4213, which independently regulates decisions rendered by courts upon the conclusion of non-jury trials and hearings. The reader is referred to CPLR 4213 for the different particulars of that statute.

Although, in the absence of a mandamus proceeding, we are obligated to affirm the order insofar as appealed from, we note that on this record, there is no signed enforceable order by which the original counsel for the plaintiffs has been disqualified and, therefore, the time to appeal any such future order has not yet begun to run.

The parties’ remaining contentions have been rendered academic.

Accordingly, the order is affirmed insofar as appealed from.

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