Inadequate Appellate Record Forecloses Review of CPLR 4404(a) Challenges; Unsigned Certified Depositions Usable After 60 Days

1. Introduction

In United Store Fixtures and Importers Corp. v New York City Economic Development Corp. (2026 NY Slip Op 01395), the Appellate Division, Second Department affirmed an order of the Supreme Court, Kings County, which denied the plaintiff’s post-trial motion under CPLR 4404(a) to set aside a defense verdict “in the interest of justice” and for a new trial.

The underlying case was a contract dispute in which the plaintiff sought damages for breach of contract. After trial, the jury found for the defendant, determining that any breach was excused. On appeal, the plaintiff challenged multiple trial-level rulings (evidentiary issues, affirmative defenses, directed verdict issues, and dismissal of a cause of action), but the appellate court held that key parts of the record necessary to review several claims were missing. The court also addressed, and rejected, certain preserved claims concerning deposition transcript use and expert admissibility, and found other arguments unpreserved.

2. Summary of the Opinion

  • Affirmance based partly on an inadequate record: The court declined to reach several of the plaintiff’s arguments because the record on appeal omitted critical exhibits and documents (including discovery responses, pleadings, and contracts) required to review the challenged rulings.
  • Unsigned but certified depositions: The trial court properly allowed use of unsigned yet certified deposition transcripts where the witnesses failed to sign and return them within 60 days after submission for review (CPLR 3116[a]).
  • Expert testimony: The trial court did not abuse its discretion in admitting the defendant’s expert testimony; asserted shortcomings went to weight, not admissibility, and the expert was not an “interested witness” on this record.
  • Summation misconduct claim unpreserved: The plaintiff’s claim that defense counsel made inflammatory remarks during plaintiff’s summation was unpreserved due to lack of specific objection and failure to seek curative relief.
  • Jury charge challenges unpreserved: The plaintiff did not object to the jury charge at trial (CPLR 4110-b), so appellate review was unavailable.

3. Analysis

3.1. Precedents Cited

A. Record on appeal and inability to review without necessary materials

The decision’s procedural centerpiece is that an appellant must provide a complete record, and that appellate courts will not decide issues that cannot be evaluated due to omissions:

  • Bruzzese v Bruzzese, 203 AD3d 1007: Cited for the rule that CPLR 5526 requires the record on appeal to contain the papers and exhibits upon which the appealed order was founded, and that assembling a proper record is the appellant’s obligation. The court used this as primary authority to fault the plaintiff for missing exhibits and documents.
  • Klein v Richs Towing, 213 AD3d 920: Reinforces the same record-assembly obligation and the practical consequence that omissions can be fatal to appellate review.
  • Wilmington Trust, N.A. v Donadio, 218 AD3d 519: Used to justify the appellate court’s refusal to reach arguments where the record is “inadequate to enable” an informed decision. The court applied this principle to multiple challenges that depended on documents absent from the record (discovery responses, pleadings, and contracts).

B. Standards for CPLR 4404(a) “interest of justice” relief

The court situated the motion within the familiar CPLR 4404(a) framework:

  • Heller v City of New York, 218 AD3d 552 (quoting Chihuahua v Birchwood Estates, LLC, 203 AD3d 1015): Defines the scope of “interest of justice” review—trial errors such as evidentiary rulings, charge mistakes, misconduct, newly discovered evidence, and surprise.
  • Heubish v Baez, 178 AD3d 779 (citing Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376): Establishes that the trial judge asks whether “substantial justice has been done,” using “common sense, experience and sense of fairness” rather than rigid reliance on precedent.
  • Feldman v Knack, 170 AD3d 667 (see also Hiotidis v Ramuni, 161 AD3d 955): Emphasizes that, in deciding a CPLR 4404(a) motion, courts must give the nonmoving party every favorable inference and view facts in the light most favorable to the nonmovant.

C. Deference on evidentiary rulings and prejudice requirement

  • Traca v Catapano Engg. & Architecture, P.C., 237 AD3d 1134 (quoting Dyszkiewicz v City of New York, 218 AD3d 546; see also 6 Harbor Park Dr., LLC v Town of N. Hempstead, 230 AD3d 721): Supports the proposition that trial courts have wide discretion in evidentiary rulings and appellate courts will not disturb them absent an improvident exercise of discretion or prejudice to a substantial right (CPLR 2002).

D. Use of unsigned but certified deposition transcripts (CPLR 3116[a])

  • Farquharson v United Parcel Serv., 202 AD3d 923, and Franzese v Tanger Factory Outlet Ctrs., Inc., 88 AD3d 763: Applied to support that where certified deposition transcripts are submitted for review and the witness does not sign and return within 60 days, they may be used “as fully as though signed.”
  • Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d 45, and Carey v Five Bros., Inc., 106 AD3d 938: Cited for the further limitation: absent a challenge to transcript accuracy, lack of signature does not render the deposition inadmissible.

E. Expert admissibility (Frye and discretion) and “interest” of the witness

  • Frye v United States, 293 F 1013 [1923], as framed by Farrell v Lichtenberger, 194 AD3d 1013 (quoting Lugo v New York City Health & Hosps. Corp., 89 AD3d 42): Confirms New York’s “general acceptance” test for scientific principles or procedures underlying expert testimony.
  • Doviak v Finkelstein & Partners, LLP, 137 AD3d 843 (see also Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 110 AD3d 680; Espinal v Jamaica Hosp. Med. Ctr., 71 AD3d 723): Supports the common distinction that an expert’s purported lack of experience typically affects weight, not admissibility.
  • Kohler v Barker, 147 AD3d 1037 (see also Price v New York City Hous. Auth., 92 NY2d 553): Reinforces that admissibility and scope of expert testimony rest largely within the trial court’s discretion.
  • Ghazala v Shore Haven Apt. Del, LLC, 229 AD3d 447: Used to stress that alleged shortcomings are fodder for cross-examination and go to weight, not admissibility.
  • Coleman v New York City Tr. Auth., 37 NY2d 137, and Frank v State-Wide Ins. Co., 151 AD2d 458: Cited to reject the plaintiff’s characterization of the defense expert as an “interested witness” on the record presented.

F. Preservation: summation remarks and jury charge

  • Wilson v Finkelstein, 226 AD3d 950, and Sattar v City of New York, 201 AD3d 756: Stand for the preservation rule in summation-misconduct contexts—general objections without requests for curative instructions, mistrial, or other relief generally do not preserve the issue. They also inform the court’s alternative holding that the remark was not so pervasive/prejudicial as to deny a fair trial.
  • DiLallo v Katsan LP, 134 AD3d 885 (see also Gibbons v State of New York, 206 AD3d 974; Kelly v New York City Health & Hosps. Corp., 194 AD3d 1032; quoting Kilburn v Acands, Inc., 187 AD2d 988): Provides the substantive standard for jury instructions and when an instructional error warrants a new trial (i.e., when the error is so significant that the jury was prevented from fairly considering the issues).
  • Madigan v Putnam County, 230 AD3d 751, and Barrett v New York City Tr. Auth., 176 AD3d 909: Applied to confirm that failure to object to the charge at trial renders appellate challenges unpreserved under CPLR 4110-b.

3.2. Legal Reasoning

The court’s reasoning follows a structured sequence typical of Second Department review of post-trial motions:

  1. Threshold procedural gatekeeping (record adequacy): Invoking CPLR 5526 and the appellant’s burden, the court refused to reach contentions that depended on missing materials (discovery responses, pleadings, and contracts). This reflects a practical adjudicatory principle: appellate review is confined to the record, and a party cannot obtain reversal based on documents not provided.
  2. CPLR 4404(a) framework (interest of justice): The court reiterated that “interest of justice” review captures trial-level fairness issues, but that the trial judge’s determination is discretionary and considers whether “substantial justice has been done,” while giving the nonmovant favorable inferences.
  3. Discretionary evidentiary rulings: Applying the “wide discretion” standard, the court affirmed the trial court’s decision to allow (i) use of unsigned but certified depositions under CPLR 3116(a) after the witnesses failed to timely sign/return, and (ii) admission of expert testimony where complaints went to weight rather than admissibility, consistent with Frye principles and discretionary control of expert scope.
  4. Preservation doctrine as an independent bar: The court treated lack of timely, specific trial objections—and failure to request curative measures—as dispositive barriers to appellate review regarding summation remarks and the jury charge.

3.3. Impact

  • Appellate practice (record discipline): The decision underscores that even potentially substantial trial claims (e.g., directed verdict issues, exclusion/admission of key documentary proof, dismissal of causes of action) may be unreviewable if the appellant fails to include the foundational documents in the record. Practitioners should treat contracts, pleadings, discovery responses, and trial exhibits as non-optional when those materials underpin the challenged rulings.
  • Trial practice (depositions): The opinion reinforces that unsigned but certified deposition transcripts can be used when CPLR 3116(a)’s review-and-return process is followed and the witness does not timely respond—particularly where accuracy is not challenged. This encourages parties to build a clear CPLR 3116(a) “paper trail” (submission for review, certification, and passage of 60 days).
  • Expert litigation: By reaffirming that weaknesses generally go to weight, the decision favors resolving many expert disputes through cross-examination rather than exclusion, absent a true Frye “general acceptance” problem or other admissibility defect.
  • Error preservation: The ruling is a cautionary example: appellate courts will not “rescue” unpreserved summation and charge issues. The practical impact is to incentivize precise objections and requests for corrective action at the moment an issue arises.

4. Complex Concepts Simplified

CPLR 5526 (Record on appeal)
The appellate court decides issues based only on what is formally included in the record. If key documents (contracts, pleadings, exhibits) are missing, the court may refuse to decide the appellant’s arguments because it cannot evaluate what occurred below.
CPLR 4404(a) (“interest of justice” motion)
A post-trial request asking the trial judge to set aside a verdict and order a new trial due to fairness problems at trial (for example, significant evidentiary errors, improper conduct, or serious charge mistakes). The standard is discretionary and focuses on whether substantial justice was done.
CPLR 3116(a) (Unsigned deposition transcripts)
After a deposition, a witness may review and sign the transcript. If the transcript is sent for review and the witness does not sign and return it within 60 days, the transcript—if certified—may be used as if it were signed, especially when no one disputes its accuracy.
Frye standard
New York’s test for whether scientific methods underlying expert testimony are accepted enough in the relevant field to be admitted. It is about general acceptance of the methodology, not whether the court finds the conclusion persuasive.
Preservation (CPLR 4110-b and related rules)
To raise an issue on appeal, a party typically must object at trial clearly and specifically, and often must ask the judge for a remedy (curative instruction, mistrial, etc.). Without that, appellate courts often deem the issue unpreserved and will not review it.

5. Conclusion

The Second Department’s affirmance turns on two practical lessons. First, appellate review is only as strong as the record; when an appellant omits the very documents needed to assess the claimed errors, the court may decline review altogether. Second, on the merits of preserved issues, the court reaffirmed discretionary trial-management principles: certified but unsigned depositions may be used after CPLR 3116(a)’s 60-day period, expert testimony is generally admissible where criticisms go to weight rather than admissibility, and unpreserved objections to summation or jury instructions will not be entertained on appeal.