| Lieberman-Massoni v Massoni |
| 2017 NY Slip Op 00294 [146 AD3d 869] |
| January 18, 2017 |
| Appellate Division, Second Department |
[*1]
| Stacee Lieberman-Massoni,Respondent, v John Massoni, Appellant. |
Joseph R. Miano, White Plains, NY (Stephen Gassman of counsel), forappellant.
Bleakley Platt & Schmidt, LLP, White Plains, NY (William P. Harrington andSusan E. Galvao of counsel), and Maniatis & Dimopoulos, P.C., Tuckahoe, NY(Gus Dimopoulos of counsel), for respondent (one brief filed).
Appeal by the defendant from an order of the Supreme Court, Westchester County(Lawrence H. Ecker, J.), dated December 5, 2014. The order, insofar as appealed from,granted those branches of the plaintiff's motion which were to reopen the trial basedupon newly discovered evidence and for interim counsel fees to the extent of awardingthe sum of $40,000.
Ordered that the order is affirmed insofar as appealed from, with costs.
The parties were married in 1997 and are the parents of two children. In February2012, the plaintiff commenced this action for a divorce and ancillary relief. After theconclusion of the trial in July 2014, but before judgment was rendered, the plaintiffmoved, in relevant part, to reopen the trial based upon newly discovered evidence relatedto the fair valuation of the defendant's membership interest in his corporate employer andfor an award of interim counsel fees in the sum of $50,000. By order dated December 5,2014, the Supreme Court granted those branches of the plaintiff's motion which were toreopen the trial and for interim counsel fees to the extent of awarding the sum of$40,000, subject to reallocation at the conclusion of the trial. The defendant appeals.
"[T]rial courts have the power to permit a litigant to reopen a case under appropriatecircumstances" (Morgan v Pascal, 274 AD2d 561, 561 [2000]). "When a motionto reopen is made, the trial court should consider whether the movant has provided asufficient offer of proof, whether the opposing party is prejudiced, and whethersignificant delay in the trial will result if the motion is granted" (Sweet v Rios, 113 AD3d750, 752 [2014]; see Kay Found. v S & F Towing Serv. of Staten Is.,Inc., 31 AD3d 499, 501 [2006]). Here, the Supreme Court providently exercisedits discretion in granting that branch of the plaintiff's motion which was to reopen thetrial to present newly discovered evidence (see Sweet v Rios, 113 AD3d at751-752; Frazier v Campbell, 246 AD2d 509, 510 [1998]; Carney vCarney, 236 AD2d 574, 575-576 [1997]).
The Supreme Court providently exercised its discretion in granting that branch of the[*2]plaintiff's motion which was for interim counsel feesto the extent of awarding $40,000, subject to reallocation at the conclusion of the trial(see Domestic Relations Law § 237 [a]; Woodford v Woodford, 100AD3d 875, 877 [2012]). Chambers, J.P., Roman, Miller and Barros, JJ., concur.