19-2825-cv
Piccolo v. Top Shelf Provisions Co. Inc., et al

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.


              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 1st day of July, two thousand twenty.

PRESENT:             RALPH K. WINTER,
                     GUIDO CALABRESI,
                     DENNY CHIN,
                                         Circuit Judges.
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LOUIS PICCOLO, individually and on behalf of
those individuals similarly situated,
                                        Plaintiff-Appellee,

                                  -v-                                              19-2825-cv

TOP SHELF PROVISIONS CO. INC., RICH DALHEM,
ANTHONY CICCIARI,
                     Defendants-Appellants.

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FOR PLAINTIFF-APPELLEE:                                      SAUL D. ZABELL, Zabell & Collotta, P.C.
                                                             Bohemia, New York.
FOR DEFENDANTS-APPELLANTS:                   JOSEPH M. LABUDA, Milman Labuda Law
                                             Group PLLC, Lake Success, New York.

               Appeal from the United States District Court for the Eastern District of

New York (Brown, M.J.). 1

               UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the appeal is DISMISSED.

               Defendants-appellants Top Shelf Provisions Co. Inc. ("Top Shelf"), Rich

Dahlem, and Anthony Ciccari (collectively "defendants") appeal from the August 7,

2019 memorandum and order of the district court denying their motion for judgment as

a matter of law pursuant to Federal Rule of Civil Procedure 50(b). A jury awarded

$10,000 to plaintiff-appellee Louis Piccolo after finding that defendants violated the Fair

Labor Standards Act, 29 U.S.C. §§ 201 et seq. (the "FLSA"), and the New York Labor Law

§§ 190 et seq. (the "NYLL") in failing to furnish a wage notice and regular wage

statements during the time he was employed by them as a driver. 2 We assume the

parties' familiarity with the underlying facts, procedural history, and issues on appeal.

               The jury was asked to decide multiple claims, and it ruled in favor of

plaintiﬀs on some claims and in favor of defendants on other claims. Defendants

contend that the district court erred in denying their motion for judgment as a matter of



1       The parties consented to jurisdiction by a magistrate judge pursuant to 28 U.S.C. §
636(c). Judge Brown has since been appointed a United States District Judge.
2       The jury also awarded $10,000 to opt-in plaintiff John Sudlow, who is not a party to this
appeal.
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law because the jury's verdict was inconsistent and because Piccolo's wage statement

claim under NYLL 195(3) was not pled in the complaint. Defendants, however, have

failed to provide this Court with a copy of the trial transcript. Rule 10 of the Federal

Rules of Appellate Procedure requires an appellant to "order from the reporter a

transcript of such parts of the proceedings not already on ﬁle as the appellant considers

necessary." Fed. R. App. P. 10(b)(1)(A). Additionally, "[i]f the appellant intends to urge

on appeal that a ﬁnding or conclusion is unsupported by the evidence or is contrary to

the evidence, the appellant must include in the record a transcript of all evidence

relevant to that ﬁnding or conclusion." Fed. R. App. P. 10(b)(2). Finally, the appellant

"must comply with Rule 10(b) and must do whatever else is necessary to enable the

clerk to assemble and forward the record." Fed. R. App. P. 11(a).

              Defendants' failure to provide the trial transcript precludes this Court

from reviewing their appeal. While dismissal of an appeal for the failure to obtain a

trial transcript is not mandatory, see Savard v. Marine Contracting Inc., 471 F.2d 536, 543

(2d Cir. 1972), it is our practice to do so where the failure to provide the relevant

transcripts "deprives this Court of the ability to conduct meaningful appellate review,"

Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000). Here, defendants ask us to set

aside a jury verdict as inconsistent, something we cannot ascertain without knowing

what evidence was submitted to the jury with respect to the diﬀerent claims. Because

the jury's verdict is not necessarily inconsistent on its face, only a close review of


                                              3
relevant portions of the record below could lead to a ﬁnding of inconsistency. 3 Rather

than providing us with the transcript, defendants engage in detailed discussion of the

evidence, and argue that "[b]ased on the evidence adduced at trial and the jury's

ﬁndings," they are entitled to judgment as a matter of law. Def.-App. Br. at 14-20, 20.

Moreover, defendants were given adequate notice of the need to obtain a transcript, as

the district court denied their posttrial motion for judgment as a matter of law in part

because they "failed to obtain a copy of the trial transcript," App'x at 214, but they

nonetheless failed to remedy the deﬁciency.

               Accordingly, because defendants' failure to obtain the trial transcript

precludes meaningful appellate review of their claims, we dismiss.

                                            *   *   *

               For the foregoing reasons, the appeal is DISMISSED.


                                             FOR THE COURT:
                                             Catherine O'Hagan Wolfe, Clerk




3      The jury's verdict might simply reflect that neither party had met its burden; in other
words, that the evidence was in equipoise.
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