Gary G. v Elena A.G.

[*1] Gary G. v Elena A.G. 2022 NY Slip Op 22373 Decided on December 5, 2022 Supreme Court, Kings County Sunshine, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 5, 2022
Supreme Court, Kings County

Gary G., Plaintiff,

against

Elena A.G., Defendant.



Index No.: REDACTED


Donald S. Campbell, Esq.
Law Offices of Richard A. Danzig
Attorney for Plaintiff
One North Broadway, 12th Floor
White Plains, New York 10601

Yonatan S. Levoritz, Esq.
Levoritz Law Firm
Attorney for Defendant
140 Broadway, 46th Floor
New York, New York 10005

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 [*2]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 matter 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 NYS3d 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 [*3]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 [*4]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 NY2d 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 exercise its discretion. During trials Courts are called upon to determine admissibility of evidence, parse proposed exhibits, and determine which are inadmissible (including those which may not be admissible as hearsay) and which are admissible. Furthermore, these proposed exhibits have not been accepted into evidence. Any evidentiary objections — including hearsay challenges — raised when the proposed exhibits are offered will be ruled on by the Court in the normal course. Courts in bench trials are well aware of the obligation to disregard testimony or exhibits which are deemed improper. Had the defendant not provided the exhibits under the voluminous record rule, plaintiff would have then been able to assert the charts cannot be admitted because the underlying documents were not provided.

Objection to Proposed Exhibit: Relevance

Plaintiff argues that the Court should not grant the application because, he contends summarily, the proposed exhibits being in evidence "would not produce a [*5]different result" because, he contends, defendant is not making payments towards the alleged debts. He posits that the debts reported on the credit card records defendant seeks to offer into evidence are not "real debts" if she is not making regular contemporaneous payments towards them and that even if the Court were to find that they are marital debts that the Court should not require plaintiff to be responsible for any portion of them if defendant is not paying toward the debt(s).

Defendant argues that there is no requirement that a spouse must be actively paying a debt for a debt to be subject to equitable distribution if it is proven to be a marital debt. She contends that, if accepted into evidence, these proposed exhibits may impact the Court's determination of equitable distribution and allocation of debts.

Objection to Substance of Proposed Exhibits: Not Marital

Plaintiff contends that even if the Court were to admit the proposed exhibits and were to find that the debts are "real" it would not impact the litigation because, he contends, the debts — or at least a portion of the debts — are not marital debts subject to equitable distribution. Defendant contends that the expenses reflected on the credit card statements which she wants to offer into evidence were made prior to the commencement of this litigation and represent marital expenses and therefore these debts should be considered by the Court and allocated between the parties in any award of equitable distribution.

DECISION

Expenses Incurred During Marriage

It is well-established by the Appellate Division, Second Department that "expenses incurred prior to the commencement of an action for a divorce are marital debt to be equally shared by the parties upon an offer of proof that they represent marital expenses" (Bari v Bari, 200 AD3d 835, 161 NYS3d 97 [2 Dept.,2021]; see also Scher v Scher, 91 AD3d 842, 938 NYS2d 317 [2 Dept.,2012]).

If the proposed exhibits are accepted into evidence the determination of what, if any, weight to give them is the Court subject to cross-examination. Certainly, the substantive determination of whether the debts proffered are marital or not is a substantive issue for the Court to determine. Having the underlying bank records, if in fact such exist, in reaching this determination would aid the Court in arriving at an equitable determination on the merits but alone may not be dispositive depending on the Court's assessment of any testimony or other proof. The fact that the expenses incurred may not, after examination, be determined to be marital is not a basis for the Court to preclude the proposed exhibits from being offered into evidence. Plaintiff's assessment that the proposed exhibits are of no legal merit is not binding on this Court and is rejected as a legally insufficient basis to oppose the application. The weight, if any, to give the proposed exhibits, if they are accepted into evidence subject to cross-examination, is a determination for the Court.

CPLR 4404(b)

CPLR 4404(b) provides:

(b) Motion after trial where jury not required. After a trial not triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside its decision or any judgment entered thereon. It may make new findings of fact or conclusions of law, with or without taking additional testimony, render a new decision and direct entry of judgment, or it may order a new trial of a cause of action or separable issue.

It is well-established that a motion pursuant to CPLR 4404(b) "must be made within 15 days after the submission of the court's decision" (Trimarco v Data Treasury Corp., 146 AD3d 1008, 1009 [2 Dept.,2017]; see also CPLR 4405). Where a CPLR 4404(b) motion is submitted more than 15 days after the court's decision, the movant must demonstrate good cause for the delay (see Rice v. Rice, 135 AD3d 928 [2 Dept.2016]). The standard in reviewing these applications includes the moving party demonstrating that they could not have previously discovered this evidence or that the evidence was previously inaccessible (see Turco v Turco, 117 AD3d 719 [2 Dept.,2014][CPLR 4404(b) application properly denied where motion was not made within 15 days and application was based on evidence known and accessible but not introduced at the trial]; see Stambaugh v Stambaugh, 226 AD2d 363 [2 Dept.,1996[CPLR 4404(b) application properly denied where evidence sought to be offered into evidence was not newly discovered]; Da Silva v Savo, 97 AD3d 525 [2 Dept.,2012][trial court erred in granting CPLR 4404(b) motion where movant failed to show that they could not have previously discovered the documents which were submitted in support of their motion]).

The Court rejects plaintiff's contention that defendant's application pursuant to CPLR 4404(b) is fatal because no judgment or order has been issued.

While reliance on CPLR 4404(b) is not fully applicable because there has yet to be a decision and order, the requirement to move to offer this evidence expeditiously is present in the case at bar. Clearly, the unique facts and circumstances presented here clearly fall within the contemplation of CPLR 2005 relating to law office failure which provides:

...the court shall not, as a matter of law, be precluded from exercising its discretion in the interests of justice to excuse delay or default resulting from law office failure.

To adopt plaintiff's proposition would, under the facts and circumstances presented, place form over function and, more importantly, would force the parties to incur unnecessary counsel fees and would result in a waste of judicial resources (see generally Antoine v Bee, 26 AD3d 306 [2 Dept.,2006]) Plaintiff contends that the Court issue its decision and then to consider the application pursuant to CPLR 4404(b): this would be a waste of judicial resources especially in considering marital debt. To wait, the Court would have to reconsider the entire marital estate and distributions in determining equitable distribution which is equitable not equal (see Keren v Keren, 201 AD3d 906, [*6]158 NYS3d 592 [2 Dept.,2022]). Equity is determined by the totality of the circumstances not debt standing alone.

Moreover, it is well-established that "[t]rial courts have the power to permit a litigant to reopen a case under appropriate circumstances" and in doing so the Court must consider "whether the movant has provided a sufficient offer of proof, whether the opposing party is prejudiced, and whether significant delay in the trial will result if the motion is granted" (Lieberman-Massoni v Massoni, 146 AD3d 869, 869 [2 Dept,2017], citing Sweet v Rios, 113 AD3d 750, 752 [2 Dept.,2014]). The Appellate Division, Second Department has found that it was an improvident exercise of discretion where a trial court declined to reopen a trial where reopening would have permitted "the submission of what it considered to be critical evidence" (Kay Found v S & F Towing Serv. Of Staten Is., Inc., 31 AD3d 499, 501 [2 Dept.,2006]).

Here, defendant made an offer of proof that the alleged business records are material and directly relevant to the Court's determination of equitable distribution, including consideration and possible allocation of any marital debt, which is an ancillary issue that the Court must consider if presented. Defendant raised the issue of marital debt on credit cards during the trial. Defendant's counsel acknowledges it was law office failure — forgetting a box of these exhibits — on the day of trial that resulted in the exhibits not being offered into evidence. Plaintiff does not dispute that he was notified of defendant's intent to offer the exhibits at trial. Plaintiff merely contends, summarily, that the alleged debts are not marital.

The Appellate Division, Second Department has repeatedly upheld reopening of trials in matrimonial actions for material evidence to be offered into evidence where failing to do so would deprive a party of substantial justice often citing to the Court's interest in the full and just distribution of the marital estate (see Howe v Howe, 68 AD3d 38 [2 Dept.,2009]; see also Carney v Carney, 236 AD2d 574 [2 Dept., 1997]).

The Court finds that it is appropriate under the unique facts and circumstances presented, re-opening the trial on the limited issue of offering the credit cards and any related direct and cross-examination related to any such exhibits which may be accepted into evidence after the Court hears any relevant evidentiary objections based upon law office failure.

In reaching this determination, the Court has examined the interaction between the New York Civil Practice Law and Rules and the Domestic Relations Law and the strong public policy in New York State to determining matrimonial actions on the merits (see Goldenberg b. Goldenberg, 123 AD3d 761 [2 Dept.,2014]; see also Viner v Viner, 291 AD2d 398 [2 Dept.,2002]). The Court has also been mindful in considered the public policy favoring finality in litigation and preventing re-litigation of the same issues (sometimes referred to as preventing a "second bite at the apple"). The facts presented do not, in the opinion of this Court, represent an attempt by a party for a "second bite at the apple" and reflect an attempt by an attorney to acknowledge an inadvertent oversight made during trial that was quickly recognized and that by correcting the Court can make a [*7]final determination on the merits that will more likely lead to substantive justice than denying the application.

The Court rejects the plaintiff's remaining substantive objections to the proposed exhibits: the limited issue before this Court is whether to re-opening the trial for the limited issue of defendant offering these proposed exhibits into evidence. Plaintiff may offer any relevant evidentiary objections at the time the proposed exhibits are offered. Furthermore, plaintiff's self-serving summary determinations as to the legal relevance of the proposed exhibits is not binding on this Court. If accepted into evidence, plaintiff will have the opportunity to cross-examine the witness.

Plaintiff's reliance on Yuliano v Yuliano is misplaced (175 AD3d 1354 [2 Dept.,2019]). In Yuliano the trial court issued a decision after trial on the financial issues between the parties. The plaintiff moved pursuant to CPLR 4404(b) to reopen the trial claiming that the trial court erred, inter alia, in failing to equitably distribute funds in a bank account. The Appellate Division, Second Department found that:

[a]lthough the plaintiff submitted evidence in support of these contentions in connection with her motion pursuant to CPLR 4404(b), inter alia, to set aside portions of the decision, the plaintiff failed to demonstrate that she could not have previously discovered this evidence or that the evidence was previously inaccessible thus, the plaintiff was not entitled to an equitable share of the funds in these bank accounts or a credit for any of the defendant's alleged dissipation of marital assets" (id. at 1360).

Here, the facts and circumstances are distinguishable from those in Yuliano: defendant did not fail to pursue the necessary discovery. Rather, there is no representation that the proposed exhibits were not known or provided to plaintiff. Defendant's counsel represents that he noticed plaintiff of his intention to proffer these exhibits by way of e-mail which is not disputed by plaintiff and, in fact, were previously provided.

The facts in Yuliano clearly aim to avoid prejudice and waste of judicial resources resulting from a party waiting until a decision is issued to, in effect, "see what happens" before engaging in discovery that could have been done during the normal course of discovery and offered during trial. That is not the case before this Court: defendant obtained the necessary discovery, shared it with plaintiff, notified plaintiff that it would be offered into evidence and discovered mere days later that the evidence had not been offered due to law office failure. Not reopening the trial under these unique facts and circumstances would not result in substantial justice (see generally Carney, supra).

Voluminous Writing Exception: Exception to Best Evidence Rule

The best evidence rule "requires the production of an original writing where its contents are in dispute and sought to be proven" Schozer v William Penn Life Ins. Co. of New York, 84 NY2d 639 [1994]; see also People v Fernandez, — NYS3d —, 2022 WL 16626107 [2 Dept., November 2, 2022]).

CPLR 4518(a) (the "business record exception") provides that:

(a) Generally. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. An electronic record, as defined in section three hundred two of the state technology law, used or stored as such a memorandum or record, shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record. The court may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record. All other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but they shall not affect its admissibility. The term business includes a business, profession, occupation and calling of every kind.

The voluminous writing exception (also referred to as the "Voluminous Record Rule") "permits the admission of summaries of voluminous records or entries where, if requested, the party against whom it is offered can have access to the original data" (Ed Guth Realty, Inc. v Gingold, 24 NY2d 440, 446 [1974]; see also Matter of Thomma, 232 AD2d 422 [2 Dept.,1996]. The voluminous writing exception is not a new principal. In Public Operating Corp. v. Weingart, the Appellate Division, First Department in 1939 wrote that:

[w]hen documents introduced in evidence at a trial are voluminous and of such a character as to render it difficult for the jury to comprehend material facts without schedules containing abstracts thereof, it is within the discretion of the judge to admit such schedules provided they are based on facts in evidence, verified by the testimony of the person by whom they were prepared, and provided that the adverse party is permitted to examine them to test their correctness and to cross examine upon them before the case is submitted to the jury (257 AD 379, 382 [1 Dept.,1939]).

Defendant has made an offer of proof that the proposed exhibits include business records. The parties will have a full and fair opportunity to address any admissibility objections at the time the proposed exhibits are offered into evidence. The Court notes that defendant represents that the underlying business records supporting the voluminous writings charts are available and, if admitted into evidence, plaintiff will have an opportunity to "test their correctness and to cross examine upon them" as detailed in Public Operating Corp (id.). This is especially so in a matrimonial action: the voluminous record rule, when used properly, is an efficient method of expediting trials which conserves parties' financial resources and judicial resources while ensuring [*8]efficacious presentation of relevant information.

The plaintiff's remaining contentions are moot as to the issue at hand: any relevant evidentiary objection(s) may be raised at the time an exhibit is offered into evidence and the Court may rule on the objection(s) at that time.

Counsel shall contact chambers to select a date for continued testimony.

CONCLUSION

Motion sequence #11 is granted to the extent indicated herein.

This shall constitute the decision and order of the court.

ENTER:

HON. JEFFREY S. SUNSHINE