Opinion
2007-1397 K C.
Decided November 5, 2008.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered June 6, 2007. The judgment, after a nonjury trial, dismissed the action.
Judgment reversed without costs and matter remitted to the court below for a new trial.
PRESENT: PESCE, P.J., WESTON PATTERSON and RIOS, JJ.
By order dated June 23, 2008, the subject appeal was held in abeyance on this court's own motion and the matter remitted to the court below to report whether the testimony could be reconstructed, and, if so, to submit the reconstructed record. The court below (Alice Fisher Rubin, J.) subsequently reported that the testimony could not be reconstructed. In view of the foregoing, the judgment is reversed and the matter remitted for a new trial ( see Davis Bros. Eng'g Corp. v Ferraro, 297 AD2d 275; Rogers v Avgush , 17 Misc 3d 135 [A], 2007 NY Slip Op 52266[U] [App Term, 1st Dept 2007]).
Pesce, P.J., Weston Patterson and Rios, JJ., concur.