Claimant brings a motion to reopen the trial along with a request for subpoenas
witnesses, Correction Officers (hereinafter CO) Richard Doell and K.
Shaughnessy. Claimant alleges CO Shaughnessy also fell at Cape Vincent
Correctional Facility, and he can explain the conditions surrounding his own
slip and fall. Claimant also asserts that he has written proof to support his
meritorious claim. Claimant indicates that he would like a record of when snow
removal began and ended on January 18, 2001.
Defendant opposes the requested relief. Defendant notes that CO Doell was a
witness for the defense at trial, and Claimant had the opportunity to question
him at that time. The name of CO Shaughnessy was revealed in discovery
documents presented to Claimant before trial indicating that he, too, had
fallen. Defendant maintains that the testimony at trial reflected that CO
Shaughnessy fell at a different location from where Claimant fell.
It is clearly within the discretion of the trial court whether to permit the
proof at trial to be reopened once a party’s case has been closed
(Feldsberg v Nitschke, 49 NY2d 636, 643; Radisson Community
Association, Inc. v Long, 28 AD3d 88, 91; Shapiro v Shapiro, 151 AD2d
559, 561). For good reasons, such as an inadvertent defect in evidence, a
court may allow the further introduction of evidence after a case has been
closed (see Radisson Community Association, Inc., 28 AD3d at 91; Kay
Foundation v S & F Towing Service of Staten Island, Inc. 31 AD3d 499).
Yet, “a trial court’s discretion to reopen a case after a party has
rested should be sparingly exercised” (King v Burkowski, 155 AD2d
285, 286). When a motion is made seeking to reopen the proof, consideration
should be given to whether movant has provided a sufficient offer of proof,
whether the opposing party is prejudiced, and whether the motion has been timely
made or will result in a delay in the resolution of the case (Kay Foundation,
31 AD3d at 501; Shapiro, 151 AD2d at 560-561). An untimely motion to
reopen should be denied (Shapiro, 151 AD2d at 561).
Claimant’s motion must be denied. There is no indication why CO Doell, a
witness for the defense, could not have been questioned at trial regarding
whatever knowledge he had about Claimant’s fall. Nor did Claimant
provide any explanation why he did not seek a subpoena for CO Shaughnessy before
the trial. Defendant argues, without dispute, that CO Shaughnessy’s name
was disclosed during discovery, including the fact that he, too, had fallen at
the correctional facility. There is simply no adequate reason to reopen the
proof three months after the trial held on January 19, 2006, was
Claimant’s motion is DENIED.
The Court has considered the following documents in deciding this motion:
Notice of Motion with supporting affidavit of Claimant’s request to
Affirmation in opposition of Edward F. McArdle, Esquire, Assistant