Rick Kopstein/NYLJ

A retrial must be held in a personal injury case because transcript “inadequacies,” created by a court reporter who fell asleep during trial and later died, prevented a judge from properly considering a motion to set aside the verdict, a state appeals court has ruled.

“When no agreement and no [transcript] reconstruction is possible, a new trial is required,” an Appellate Division, Second Department, panel wrote in Monaco v. New York City Transit Authority, 25829/2011. “The Supreme Court determined that it could not meaningfully review the branch of the plaintiff’s motion which was to set aside the jury verdict as contrary to the weight of the evidence because of the inadequacies.”

The panel affirmed the 2016 decisions of Kings County Supreme Court Judge Wavny Toussaint to set aside a jury verdict and, after reargument, to adhere to that ruling.

In 2011, Adriana Monaco sued defendants including the New York City Transit Authority, the Metropolitan Transportation Authority and Michael Fragapane for damages stemming from injuries; the panel didn’t specify the injuries or incident.

During a 2015 trial an unnamed court reporter “appeared to fall asleep” during a summation, the panel said.

A jury returned a defense verdict. Monaco moved under CPLR 4404(a) to set it aside, arguing the trial couldn’t be transcribed and the verdict was contrary to the weight of the evidence.

The panel wrote on Aug. 23 that “a senior court reporter … [had] stated that the court reporter [at trial] … had died, and that there were ‘significant gaps in [his trial] notes.’”

“The court correctly determined that the trial proceedings could not be reconstructed and that a new trial was required,” Justices Ruth Balkin, Sandra Sgroi, Jeffrey Cohen and Colleen Duffy ruled.

Timothy O’Shaughnessy, of counsel for New York City Transit Authority attorney Lawrence Heisler, represented defendants. Glenn Dolan, of Morgan Levine Dolan, represented Monaco. Neither could be reached for comment.