Opinion
No. 866 CA 22-00246
11-18-2022
GARRETT J. WAGNER, PLAINTIFF-APPELLANT, v. CASSIE C. WAGNER, DEFENDANT-RESPONDENT.
LAW OFFICE OF DAVID TENNANT PLLC, ROCHESTER (DAVID H. TENNANT OF COUNSEL), FOR PLAINTIFF-APPELLANT. MICHAEL STEINBERG, ROCHESTER, FOR DEFENDANT-RESPONDENT.
LAW OFFICE OF DAVID TENNANT PLLC, ROCHESTER (DAVID H. TENNANT OF COUNSEL), FOR PLAINTIFF-APPELLANT.
MICHAEL STEINBERG, ROCHESTER, FOR DEFENDANT-RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, WINSLOW, AND MONTOUR, JJ.
Appeal from an order of the Supreme Court, Monroe County (Edward C. Gangarosa, R.), entered January 6, 2022. The order denied plaintiff's motion for a reconstruction hearing.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, and the matter is remitted to Supreme Court, Monroe County, for further proceedings in accordance with the following memorandum: In this matrimonial action, plaintiff appeals from an order denying his motion for a reconstruction hearing. Initially, contrary to the parties' contentions, we conclude that, despite some inartful phrasing, plaintiff's motion sought only a reconstruction hearing to reconstruct portions of the testimony of plaintiff and defendant that could not be transcribed due to malfunctions of the audio recording system. We agree with plaintiff that Supreme Court abused its discretion in denying the motion.
"Parties to an appeal are entitled to have that record show the facts as they really happened at trial, and should not be prejudiced by an error or omission of the stenographer" or the audio recording device (People v Bethune, 29 N.Y.3d 539, 541 [2017]; see People v Henderson, 140 A.D.3d 1761, 1761 [4th Dept 2016]; Matter of Jordal v Jordal, 193 A.D.2d 1102, 1102 [4th Dept 1993]). Here, contrary to the court's determination, the record establishes that significant portions of the testimony of plaintiff and defendant, including testimony related to child custody and certain other issues, could not be transcribed due to malfunctions of the audio recording system, which would preclude meaningful appellate review of those issues (see Matter of Trejo v Pavon, 184 A.D.3d 760, 761 [2d Dept 2020]; Henderson, 140 A.D.3d at 1761; Matter of Naquan L.G. [Carolyn C.], 119 A.D.3d 567, 568 [2d Dept 2014]). To the extent that they are properly before us, we have considered and rejected the parties' remaining contentions. We therefore reverse the order, grant the motion, and remit the matter to Supreme Court to hold a reconstruction hearing with the parties and any witnesses or evidence the court deems helpful in reconstructing, if possible, those portions of the testimony of plaintiff and defendant that could not be transcribed (see Bethune, 29 N.Y.3d at 541; Trejo, 184 A.D.3d at 761; Henderson, 140 A.D.3d at 1761; see generally CPLR 5525; Monaco v New York City Tr. Auth., 153 A.D.3d 705, 706-707 [2d Dept 2017]).