New York State Court of Claims

New York State Court of Claims

ANKUM v. STATE OF NEW YORK, #2006-018-544, Claim No. 103757, Motion No. M-71600


Synopsis


Claimant’s motion to reopen trial is denied based upon inadequate reasons.

Case Information

UID:
2006-018-544
Claimant(s):
ERIC ANKUM
Claimant short name:
ANKUM
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103757
Motion number(s):
M-71600
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
ERIC ANKUMPro Se
Defendant’s attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Edward F. McArdle, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 8, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant brings a motion to reopen the trial along with a request for subpoenas for two

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 concluded.

Claimant’s motion is DENIED.


December 8, 2006
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


Notice of Motion with supporting affidavit of Claimant’s request to reopen trial.....1


Affirmation in opposition of Edward F. McArdle, Esquire, Assistant

Attorney General.............................................................................................2