McKenzie v. Damazio

Alfred McKenzie, Petitioner-Landlord-Appellant, against Akanni Damazio, Respondent-Tenant-Appellant. Tenant appeals from a final judgment of the Civil Court of the City of New York, Bronx County (Elizabeth J. Yalin Tao, J.), entered September 14, 2016, after a nonjury trial, which awarded possession to landlord in a holdover summary proceeding. Per Curiam. Appeal from final judgment (Elizabeth J. Yalin Tao, J.), entered September 14, 2016, dismissed, without costs, and without prejudice to renewal upon a proper record. Meaningful appellate review of the underlying final judgment is precluded in view of the incomplete nature of the trial transcript, which contains numerous "inaudible" gaps in the testimony of each witness (see Rogers v Avgush, 17 Misc 3d 135[A], 2007 NY Slip Op 52266[U] [App Term, 1st Dept 2007]; C.F.C. Commercial Flooring Contrs., Inc. v Sachs, 9 Misc 3d 128[A], 2005 NY Slip Op 51524[U] [App Term, 9th and10th Jud Dists 2005]). It is the appellant's obligation to prepare and submit a record on appeal that complies with the requirements of CPLR 5526. Appeals that are not based upon a proper record must be dismissed (see Fernald v Vinci, 13 AD3d 333 [2004]; see also Glicenstein v Fust, 19 AD2d 841 [1963]). Our disposition is without prejudice to renewal of the appeal upon a reconstructed record. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur Decision Date: November 29, 2017