Mahoney-Buntzman v Buntzman

[*1] Mahoney-Buntzman v Buntzman 2006 NY Slip Op 51696(U) [13 Misc 3d 1205(A)] Decided on September 8, 2006 Supreme Court, Westchester County Giacomo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 8, 2006
Supreme Court, Westchester County

Patricia A. Mahoney-Buntzman, Plaintiff,

against

Arol I. Buntzman, Defendant.



8093/03



John P. Farrauto, Esq.

Farrauto & Berman

1250 Central Park Avenue

Yonkers, New York 10704

James J. Nolletti, Esq.

Collier, Halpern, Newberg, Nolletti & Bock, LLP

One North Lexington Avenue

White Plains, New York 10601

William J. Giacomo, J.

Upon the foregoing papers it is ordered that defendant's motion is granted solely to the extent set forth below and plaintiff's cross-motion is denied.

A trial of this action was conducted between October and December of 2005. While the Court was considering the post-trial submissions of the parties, defendant filed an order to show cause (the OTSC) to bring on a motion to reopen his case at the trial. Plaintiff responded with a cross-motion seeking interim counsel fees and enforcement relief. The Court addresses the motions in the order that they were filed.

I. DEFENDANT'S MOTION

When this action was commenced, the stock owned by defendant in an entity known as EVCI was trading at $2.70 per share. The stock increased in value to $6.21 at the time of trial. However, during the trial the stock value declined as a result of an investigation into a for-profit college owned and operated by EVCI. Nevertheless, throughout the trial and in his post-trial submission, defendant strenuously argued for a distribution of the parties' assets that would involve a payment to plaintiff representing her equitable portion of the shares of EVCI stock and stock options owned by him.

Now that EVCI stock is trading at less than one dollar per share, defendant asks the Court to permit him to reopen his case at the trial so that the Court may take judicial notice of the stock price as of July 7, 2006, that being the Friday immediately before the date on which the OTSC was filed. Defendant further requests that once the Court has taken judicial notice that the stock was trading at 66 cents that day, it should award plaintiff "a percentage of EVCI stock in kind, so as to prevent any injustice which might occur due to either the delisting of the stock or for that matter any increase in the stock price subsequent to the court's determination" (Nolletti Affirm., par.14 [underlining in original]).[FN1] Relying upon the decision in Mohawk Carpet Mills, Inc. v. State of New York (173 Misc. 319 [Ct. Claims 1940]), defendant argues that the relief sought by him should be granted in the interest of justice. Not surprisingly, plaintiff opposes the motion. [*2]

It is certainly true that a Trial Court has the discretion to permit a party to reopen his case before judgment (id.; see Matter of Village of Roslyn Harbor [Berger], 26 AD2d 936,936-937 [2d Dept. 1966]). Nevertheless, "[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 [1st Dept. 1989]).

Where it will "aid materially in the ... determination of the case", it is proper to permit a party to reopen his case to submit additional evidence (Mohawk Carpet Mills, Inc. v. State of New York, supra, 173 Misc., at 322. Moreover, such relief is particularly appropriate where the evidence did not exist at the time of the trial (cf. Oka v. United States Fidelity & Guaranty Co., 213 App.Div. 746,749 [1st Dept. 1925] [Trial Court should have granted application to reopen case to present evidence in existence at time of trial but unknown to party seeking to present it]; see also Jozwiak v. Jozwiak, 286 App.Div. 1128 [3d Dept. 1955] [Trial Court properly allowed party to reopen case to present evidence discovered after trial]).

Here, the substantial decline in the value of the EVCI stock is a factor that bears upon the issue of equitable distribution, and in particular, the valuation date to be used by the Court and the manner in which any distribution of the value of that stock should be made by the Court. Because evidence of the recent value of the stock will certainly aid this Court "materially" in its determination of that issue, leave to reopen the case is warranted (see Mohawk Carpet Mills, Inc. v. State of New York, supra, 173 Misc., at 322). Therefore, the Court grants defendant's motion for leave to reopen his case, and upon reopening, it takes judicial notice that the trading price of EVCI stock as of the close of business on July 7, 2006 was 66 cents (see Scoville v. Surface Transit, Inc., 39 Misc. 991,995 [Sup. Ct. NY Co. 1963] [Court took judicial notice of stock price]; see also Powell v. Hill, 170 N.Y.S. 915,917 [Sup. Ct. NY Co. 1918] ["[Supreme] court can take judicial notice of the present condition of the financial market"]).

Although not set forth in his notice of motion, defendant argues in his papers that upon taking judicial notice of the decline in value of the stock, in rendering its decision on equitable distribution, the Court should award plaintiff an in-kind distribution of EVCI shares.[FN2] This application is denied at [*3]this time, and instead, the Court shall consider the argument in rendering its trial decision.

II. PLAINTIFF'S CROSS-MOTION

On her motion, plaintiff seeks two forms of relief. Defendant opposes both applications.

1. Counsel Fees: First, plaintiff asks the Court to grant her an advance of $10,000 toward her counsel fees, to be paid by defendant. In her view, she should be awarded that sum, and it "should not be charged exclusively against [her] share of he equitable distribution as it was incurred to submit a motion for defendant's violation of Judge Garvey's Order and to defend [defendant's] motion not based in the law" (Farrauto Affirm., par.23).

In effect, this is a request for interim fees based upon a claim that plaintiff was compelled to incur further legal expenses as a result of the filing of a frivolous motion and a violation of an existing court order. Because the Court does not agree that defendant's motion was frivolous, and that any violation of an order has been established on plaintiff's cross-motion, this application is denied.

2. Enforcement Relief: Next, plaintiff moves for an order "requiring defendant to provide monthly statements (no later than the 15th of each month) to [her] for all of his existing financial (i.e. investment and bank) accounts and not just his RBC Dain Rauscher and Morgan Stanley Accounts" (Notice of Cross-motion, p.1), based upon her claim that defendant has violated this Court's order entered on June 22, 2006 (the June 22 Order). Because the Court accepts defendant's explanation for the use of a new account prior to the issuance of the June 22 Order, it finds that no violation has occurred. For that reason, this branch of the cross-motion is also denied. [*4]

The foregoing shall constitute the decision and order of the Court.

Dated: White Plains, New York

September 8, 2006

HON. WILLIAM J. GIACOMO, J.S.C.

cc: Footnotes

Footnote 1: As explained at trial, "when stock such as EVCI goes below a $1.00 per share price for a designated time period, the company becomes delisted and the stock is presumable [sic] rendered worthless on the open market" (Nolletti Affirm., par.12).

Footnote 2: Like plaintiff, the Court can only question how likely it is that defendant would be seeking that relief, or would not oppose a similar application by plaintiff, if the share price had increased, or even remained the same as it was at the time of trial. Indeed, evidence of his likely approach is found in his opposition to plaintiff's request, made in a supplemental post-trial submission recently authorized by the Court, that the Court take judicial notice of a divorce judgment entered in defendant's prior divorce as a foundation for applying the doctrine of judicial estoppel against him.