Tippetts-Abbett-McCarthy-Stratton v. New York State Thruway Authority

17 A.D.2d 672, 229 N.Y.S.2d 1018, 1962 N.Y. App. Div. LEXIS 8726

Opinion

Appeal from an order of the Court of Claims. In accordance with our decision of December 20, 1961 (15 A D 2d 598), a motion was made by the Thruway Authority in the Court of Claims to reopen the case to introduce the letter from claimant which had been offered for the first time on appeal in this court. This motion has been denied by the Court of Claims, in part because no reason was shown by the Thruway Authority why it had not been offered on the trial. The moving affidavit of the Assistant Attorney-General shows no reason for failure to produce the letter on the trial; the answering affidavit of claimant specifically calls attention to the failure to give any “reason or explanation” why it was not offered on the trial; but no reply affidavit was filed and on the record before the Court of Claims the failure to offer the proposed exhibit is entirely unexplained by the defendant. Some explanation seems called for-—even one of inadvertence in examining a large filé and a failure earlier to note the letter or understand its significance. In the absence of any explanation we see no sound legal basis to interfere with the discretion of the Court of Claims in declining to reopen the case. Indeed, the denial of the motion for failure to disclose some ground for the omission is consistent with authority (Silverman v. Berson, 280 App. Div. 854). Order unanimously affirmed, with $10 costs. Unless there are further proceedings in the Court of Claims or here relating to this application to reopen, we assume the main appeal is ready for determination without consideration of the letter which was offered on the argument. On filing of a statement by both sides that decision on the application to reopen has become final we will undertake to determine the main appeal. Present — Bergan, P. J., Coon, Gibson, Reynolds and Taylor, JJ.