Tippetts-Abbett-McCarthy-Stratton v. New York State Thruway Authority
| Decision Date | 21 January 1963 |
| Docket Number | CARTHY-STRATTO,C,No. 34769,TIPPETTS-ABBETT-M,34769 |
| Citation | 237 N.Y.S.2d 167,38 Misc.2d 30 |
| Parties | claimant, v. The NEW YORK STATE THRUWAY AUTHORITY. Claim |
| Court | New York Court of Claims |
Sylvester & Harris, New York City, Charles L. Sylvester, Alvin M. Sylvester, New York City, of counsel, for claimants.
Gary M. Axenfeld, Syracuse, for New York Thruway Authority.
Louis J. Lefkowitz, Atty. Gen., Leonard H. Rubin, Deputy Asst. Atty. Gen., for the State.
This claim was tried originally before the then Presiding Judge of this Court who rendered judgment against the defendant. (27 Misc.2d 522, 212 N.Y.S.2d 275).
Defendant appealed from that judgment and, on the argument of the appeal, offered, for the first time, a letter attributed to claimant. The Appellate Division declined to receive or consider the exhibit because defendant did not demonstrate that the letter offered was attached or related to any exhibit actually in evidence and because it was clear 'that the Judge of the Court of Claims never saw, considered, or had his attention called to this proposed exhibit.' The Appellate Division afforded defendant, however, the opportunity 'to apply to the Court of Claims to reopen the case and to offer, and the claimant opportunity to object, refute, or explain, the exhibit' and provided that if defendant were so advised, 'it may submit an order remitting the case to the Court of Claims for further proceedings in connection with this proffered proof, and providing that the record now on file here be held until either side reviews on appeal any further resulting order or judgment of the Court of Claims.' The Appellate Division stated that it did not suggest that the case be reopened by the Court of Claims, or that the exhibit be received or rejected or what effect it might have, if received. (Tippetts-Abbett-McCarthy-Stratton v. New York State Thruway Authority, 15 A.D.2d 598, 599, 600, 222 N.Y.S.2d 821, 822-824).
Defendant then moved in the Court of Claims before another Judge of this Court for permission to reopen the trial of the claim for the purpose of introducing additional proof, i. e., the letter, on the question of defendant's liability. The Court denied the motion upon the ground that no basis was shown for the exercise of the Court's discretion to reopen the trial, as the evidence sought to be introduced was in the possession of the defendant who failed or neglected to offer it at the time of trial. (32 Misc.2d 479, 224 N.Y.S.2d 367).
This decision on the motion was affirmed by the Appellate Division. (17 A.D.2d 672, 673, 229 N.Y.S.2d 1018).
Defendant then moved again for the same relief before the Judge of this Court who had heard the prior motion to reopen. This application for an order to reopen was denied.
Defendant appealed from the order denying its motion to reopen. The Appellate Division reversed the order, holding that 'a sufficient reason for appellant's failure to offer the letter on the trial has now been factually established.' The Appellate Division held further that '[t]he exhibit itself is of significance in the case and has direct relevancy to the merits' and that '[i]n the interests of an adequate adjudication of the cause the exhibit ought to be before and considered by the Court of Claims.' (17 A.D.2d 1025, 1026, 234 N.Y.S.2d 453, 454). In view of a directive of the Appellate Division contained in its order of reversal, the claim has been given priority in the calendar of this Court and has now come before still another Judge of the Court.
The Court construes the mandate of the Appellate Division in its order of reversal to mean that this Court, having before it for consideration the exhibit in question, shall determine the question of its admissibility. If the Court decides that the letter should be admitted in evidence, then the Court shall consider the question of the effect of the letter upon the original decision and judgment of the Court.
The letter in question reads as follows:
'KNAPPEN-TIPPETTS-ABBETT-McCARTHY
Engineers
(Knappen Tippetts Abbett Engineering Co.)
62 West 47th Street
New York 36, N. Y.
Pl 7-8001
October 28, 1955
Address Reply to
Fuller & Carriere Aves.
Ardsley, New York
Ernest F. Tippetts
Robert W. Abbett
Gerald T. McCarthy
William Z. Lidicker
James H. Stratton
New York State Thruway
Hudson Section
Westchester County
Mr. J. S. Bixby, District Engineer
State Dept. of Public Works
Pleasant Valley Road
Poughkeepsie, New York
Dear Sir:
In accordance with the verbal instructions received from Mr. Carl Huhne of your office on October the 27th, we are submitting herewith our recommendations and...
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