Benderson Development Co. v. State

139 A.D.2d 927, 529 N.Y.S.2d 50, 1988 N.Y. App. Div. LEXIS 4187

Opinion

— Judgment unanimously modified on the law and as modified affirmed without costs, and matter remitted to Court of Claims for further proceedings, in accordance with the following memorandum: At the conclusion of the trial, the court agreed to leave the record open for the submission by claimant of evidence of its ownership of certain retail signs. Claimant made that submission, but failed to provide a copy to the State. The trial court accepted the submission and relied upon it in concluding that claimant was the owner of all signs.

It is fundamental that an adversary must be afforded the opportunity to examine a document offered as proof of a material fact (see, Fisch, New York Evidence § 16 [2d ed]; McCormick, Evidence § 51 [3d ed]). It was error for the court to consider such submission as evidence of ownership and, since there is no other proof on that issue, the award of $11,200 for the signs must be vacated. We therefore modify the judgment to delete any compensation for signs, without prejudice to a proper submission of proof as to ownership, and we remit the matter to the trial court for such further proceedings as may be necessary to resolve that issue. (Appeal from judgment of Court of Claims, McMahon, J. — appropriation.) Present — Denman, J. P., Boomer, Pine, Balio and Davis, JJ.