Other Motions During Trial

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 447-468

CHAPTER 37

Other Motions During Trial

§37:01 New York Trial Notebook 37-2

I. MOTION TO REOPEN

§37:01 Definition and Purpose

A motion to reopen asks the trial court to permit

a party to introduce additional evidence after the

party has rested his or her case. As a general rule,

the party holding the affirmative burden of proof

is bound to introduce all evidence on his or her

side before resting. However, the trial court may

allow a departure from this rule and permit a party

to reopen and cure defects that have inadvertently

occurred in the evidence. [Kennedy v. Peninsula

Hospital Center, 135 AD2d 788, 791, 522 NYS2d

671, 674 (2d Dept 1987); MRI Enterprises, Inc.

v. Comprehensive Medical Care of New York,

P.C., 122 AD3d 595, 596, 996 NYS2d 119, 120

(2d Dept 2014) (“A trial court, in the exercise of

discretion and for sufficient reasons, may allow a

party to reopen his or her case, and supplement the

evidence to cure any defects in the evidence that

have inadvertently occurred.” In that case, after a

nonjury trial, Supreme Court providently exercised

its discretion in sua sponte amending the pleadings,

continuing the trial and permitting the plaintiff

to reopen its case to present additional proof of

damages. ).]

A motion to reopen may be especially appropriate

when a plaintiff is confronted with defendant’s motion

for a directed verdict. [E.g., Lagana v. French, 145

AD2d 541, 536 NYS2d 95 (2d Dept 1988) (plaintiff

cross-moved to reopen after defendant moved to

dismiss for failure to make out a prima facie case);

Salzman v. Alan S. Rosell, D.D.S., P.C., 129 AD2d

833, 513 NYS2d 846 (3d Dept 1987).]

§37:02 How to Make

If the trial is before a jury, the motion should

be made immediately when the situation presents

itself. If there is time, e.g., the situation arises at

the end of the day and logic suggests making the

motion the following morning, by all means put

together a short memorandum of law. However,

if there is no time, and the jury is waiting, make

the motion orally, and offer to follow up with a

memorandum if the court desires. In a bench trial,

it may not be quite as urgent to move rapidly, but

the longer counsel delays, the less likely the motion

will be granted. If the motion is made after the court

has rendered its decision, the chances of prevailing

are very slim [see case examples, §37:07, Matter of

John Jay College of Criminal Justice v. Dormitory

Authority, 74 AD3d 460, 462, 905 NYS2d 18, 21

(1st Dept 2010)]. Whether the motion is written

or oral, make the applicable arguments—what the

evidence is and why it was not presented sooner,

and why the other side will not be prejudiced.

§37:03 How to Oppose

If the motion was made orally and the jury is

waiting, you obviously cannot expect the court

to wait for you to submit a written opposition.

However, since you may well be prejudiced if

your adversary goes forward with an additional

presentation of evidence, ask the court to permit

you to do some quick research to present case

law. If appropriate, request a short continuance. If

the trial is a bench trial and your opponent moved

on papers to reopen, you will want to oppose

the motion on papers. The key is to demonstrate

prejudice; the mere claim that allowing your

opponent to reopen will deprive you of a victory is

not sufficient prejudice. [See §37:05.]

§37:04 Court’s Discretion

The trial court has discretion to allow a party

to reopen, but that discretion “should be sparingly

exercised.” [King v. Burkowski, 155 AD2d 285,

285, 547 NYS2d 48, 49 (1st Dept 1989) (when

defendant had adequate opportunity to testify

before resting, there was no abuse of discretion

in refusing him a further opportunity to testify).]

See Matter of John Jay College of Criminal Justice

v. Dormitory Authority, 74 AD3d 460, 462, 905

NYS2d 18, 21 (1st Dept 2010) (“given that the

trial court’s discretion to reopen a case after a

party has rested should be sparingly exercised . . .

such discretion should be exercised even more

sparingly where, as here, the motion is made after

a decision has been rendered”). See also Goff v.

Paul, 8 AD3d 971, 778 NYS2d 609 (4th Dept

2004), appeal denied 3 NY3d 608, 786 NYS2d

811 (2004) (medical malpractice case; plaintiff

did not call the defendant as a witness in his direct

case, and defendant testified as a fact witness

for the defense; attempted cross seeking expert

opinion exceeded the scope of direct and was