Gary G. v. Elena A.G.

Decision Date05 December 2022
Citation2022 NY Slip Op 22373
PartiesGary G., Plaintiff, v. Elena A.G., Defendant.
CourtNew York Supreme Court

Donald S. Campbell, Esq., Law Offices of Richard A. Danzig, Attorney for Plaintiff.

Yonatan S. Levoritz, Esq., Levoritz Law Firm, Attorney for Defendant.

JEFFREY S. SUNSHINE, J.

The question presented is whether a party may seek to reopen a trial to offer into evidence, utilizing the voluminous record rule, alleged business records [credit card statements], in support of testimony regarding marital debt, after both parties had rested but before summations were due and where the exhibits were previously not offered due to alleged law office failure.

Plaintiff-husband commenced this litigation on September 24, 2015, in Supreme Court, Queens County; thereafter, on October 17, 2019, this matters was administratively transferred to this Court by Administrative Order #318. This Court issued a lengthy written decision and order dated June 14, 2021, which details the extensive procedural history in this litigation (Gary G. v Elena A.G., 72 Misc.3d 1201, 146 N.Y.S.3d 921). The parties entered into a stipulation of settlement on the issues of custody and parenting time which was incorporated but not merged into an Interlocutory Judgment on Custody and Parenting Time which was signed by this Court on March 22 2022.

This Court heard testimony during the trial on the financial issues between the parties on May 25, 2022; May 26, 2022 June 1, 2022; September 13, 2022; and September 14, 2022. The parties rested on the trial on the financial issues between them on September 14, 2022. Summations were, on consent scheduled for submission on or before November 15, 2022.

On October 4, 2022, defendant moved by Order to Show Cause [NYSCEF #449] seeking the following relief:

A. Pursuant to CPLR § 4404, reopening the trial testimony in the above-captioned action; and
B. Granting the Defendant such other and further relief as this Court may deem just and proper.

Plaintiff's counsel submitted an affirmation in opposition dated October 17, 2022. Defendant submitted a reply dated October 19, 2022. The Court heard oral arguments on October 26, 2022. The transcript of the oral argument was provided to the Court on November 17, 2022.

DISCUSSION

Defendant's counsel affirms that on September 12, 2022, his law firm e-mailed plaintiff's counsel that defendant intended to offer certain charts pursuant to the voluminous writing exception into evidence the following day in support of her testimony regarding alleged marital debt incurred prior to commencement on her credit cards. Defendant's counsel contends that his law firm included a link to the proposed charts together with copies of the underlying credit card statements in said e-mail for plaintiff's counsel's review. Defendant's counsel annexed a copy of said email and copies of the proposed charts to his application (NYSCEF #455-464).

In his affirmation, dated October 4, 2022, defendant' counsel affirms that he "inadvertently forgot" to offer "certain business records, reflecting the Defendant-Wife's credit card debts and the parties' marital expenditures, into evidence" on September 13 2022. (NYSCEF #450). The parties rested on September 14, 2022. Defendant's counsel contends that he discovered this omission after resting while preparing a summation.

Defendant requests that the Court re-open the trial pursuant to CPLR 4404(b) so she can offer into evidence certain credit card records and charts pursuant to the voluminous writing exception. Defendant contends that allowing her to offer these exhibits into evidence would "ensure that this Court has all [the] necessary information and evidence to make an informed determination concerning the equitable distribution of the parties' marital debts and further the fact-finding function of the Court" (NYSCEF #450). In support, defendant's counsel notes that defendant lists nineteen (19) credit cards with an outstanding balance of over $134,000 in her affidavit of net worth dated April 28, 2022, which was accepted into evidence. He contends that the credit card records defendant seeks to offer into evidence are in support of these claimed expenses which she claims are marital debts.

Plaintiff opposes the application contending that defendant's reliance on CPLR § 4404(b) is inapplicable here because the Court has not issued a decision or judgment. He further contends that even if the Court were to re-open the trial, the alleged debts are not marital and are irrelevant to the issues before the Court.

Prejudice: Timing

Defendant argues that the Court has discretion to re-open a case for a party, on application, to cure defects in evidence where there is no undue delay prior to the presentation of the additional evidence. Defendant contends that this application was brought in a timely manner inasmuch as the alleged law office failure was discovered shortly after the parties rested and weeks prior to the date set for submission of summations and the Court had not issued a judgment or order.

Defendant's counsel argues that there is no prejudice to the parties if the Court reopens the trial testimony for this limited issue but that there would be prejudice to both parties if the Court does not re-open the trial because then defendant would have to file an appeal and that appellate litigation would require both parties to incur additional expenses and legal fees and would further delay a final resolution of the divorce. She argues that these prejudices can be avoided if her motion is granted because then the issue of marital debt can be addressed now supported by the business records counsel inadvertently forgot to offer into evidence. She posits that either way the plaintiff must respond to the issues raised either now by way of this motion or in the context of an appeal if her motion is denied. She contends that while plaintiff may not want the Court to have all the material evidence related to the issue of marital debt because the Court may, after reviewing the evidence and considering the facts and circumstances, allocate some of the debt to him, that is not a legal basis for the Court not to re-open the trial.

Voluminous Writings Exception: Charts

Defendant contends that the charts she seeks to offer into evidence are admissible under the voluminous writings exception because they list each alleged marital expenditure by date with the corresponding credit card statement annexed which can be cross-examined by plaintiff.

Plaintiff contends that for relief to be granted under CPLR § 4404(b), the movant must show, among other things, that the new evidence is in admissible form. Plaintiff's counsel argues that the charts referred to by defendant are not admissible under the voluminous writings exception because the charts do not accurately reflect the underlying data. Plaintiff's counsel asserts that:

...each proposed exhibit cover chart (E - L) either lists only the vendor without any description whatsoever as to the item/items purchased chart or lists only the general nature of the individual charges without any description whatsoever as to the item/items purchased. The charts also only include the amounts of purchases but conveniently do not include any of the credits applied each month from monthly payments, returns or other credits thereby exaggerating and inaccurately reflecting a total value of "marital expenditures" to be distributed.

Plaintiff argues that the charts are incomplete and therefore unreliable and as such the charts are not admissible: he argues that the charts show only debits/debts and do not include any credits applied each month from monthly payments, returns or other credits.

Objection to Annexing Voluminous Records Charts as Offer of Proof

Plaintiff further contends that it was manifestly "inappropriate" for defendant to annex copies of the proposed exhibits she seeks to offer into evidence to her application to reopen the trial. He argues that defendant's attempt to introduce what he characterizes as unreliable and inaccurate charts may prejudice him because there is no way of gauging the subtle impact of inadmissible hearsay on even the most objective trier of fact [NYSCEF #469] citing to Matter of Leon RR, 48 N.Y.2d 117 [1979].

In Matter of Leon RR, the Court of Appeals found that it was error for the trial court to admit into evidence an entire case file over objection that admission of the materials en masse would be severely prejudicial because they could contain damaging hearsay. The trial court admitted the entire file over objection indicating that it would "disregard all matters which would not survive a hearsay challenge" (id. at 122). Plaintiff's reliance on Matter of Leon RR is inapposite to the facts presented before this Court. Here the Court has not - nor will it - admit en masse exhibits into evidence that have not withstood hearsay challenge. Rather, the sole issue presently before the Court is whether to reopen the trial so that proposed evidence can be offered into evidence subject to an evidentiary objection(s). As such, the Court reject's plaintiff's contention that there is de facto irreparable prejudice presented by allowing defendant to offer the proposed evidence. If upon offer the proposed exhibits cannot withstand hearsay (or any other) evidentiary challenge, they will not be accepted into evidence.

Furthermore defendant argues that she was required to annex these documents as an offer of proof as it is one of the relevant factors the Court must consider when deciding whether to grant a motion to re-open a trial. The Court agrees. To adopt plaintiff's contention that annexing the proposed exhibits to the application was inappropriate would not allow the Court to...

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