In the Matter of the Petition of Fire Island Ferries, Inc. v. Voubouris et al
MEMORANDUM AND OPINION: Claimants' two pronged request, as set forth in their post-trial reply (Doc. 126 at 19) and their letter to the Court dated April 17, 2017 (Doc. # 132) is denied in toto. Accordingly, the Court's decision on petitioner's application to limit its potential liability to the value of the Courier, now sub judice, will be decided on the evidence adduced at trial. See attached. Ordered by Judge Denis R. Hurley on 7/6/2017. (Gapinski, Michele)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
IN THE MATTER OF THE PETITION OF
FIRE ISLAND FERRIES, INC., AS
OWNER OF THE COURIER FOR THE
EXONERATION FROM AND LIMITATION
A P P E A R A N C E S:
For Petitioner Fire Island Ferries, Inc.:
Nicoletti Hornig & Sweeney
Wall Street Plaza
88 Pine Street
New York, New York 10005-1801
By: David R. Hornig, Esq.
Dougherty, Ryan, Giuffra, Zambito
250 Park Avenue
New York, New York 10177
By: John Joseph Hession, Esq.
Joseph C. Tonetti, Esq.
HURLEY, Senior District Judge
Presently pending is a post-trial application by
claimants Anastasio Voudouris ("Voudouris"), Kevin Diaz, and
Daniel Bustamonti ("claimants") for the Court to accept receipt
of proffered rebuttal evidence (see Doc. # 126 at ¶ 19)
pertaining to an issue pursued at trial by the parties but the
significance of which, in claimants’ view, "truly only emerged
from 'the clash' of the parties’ post trial submissions,"
# 132 at 2).
Alternatively, "[c]laimants respectfully request
that the Court re-open the record and allow further testimony on
this vital issue . . . ."
For the reasons provided infra, each of the alternative
prongs of claimants’ application is denied.
This case arises out of a July 10, 2011 collision on
the Great South Bay just north of Atlantique, Fire Island, New
York between a small pleasure craft named the MY DAY OFF TOO
("MDOT") and the Courier, a commercial water taxi owned and
operated by Fire Island Ferries, Inc. ("FIF" or "petitioner").
A bench trial was held before the undersigned on
September 19, 20, 21, 23 and December 6, 2016.
The purpose of
the trial was to determine the merits of FIF's petition, brought
pursuant to 46 U.S.C. § 3050.1 et seq., to limit its potential
liability for claimants' alleged damages to the value of the
After all of the evidence was presented, the parties
Post-trial memoranda were then filed consistent with a
briefing schedule established by the Court, with the last such
submission being received from the parties on March 31, 2017.
(Doc. #s 126-129.)
Contained amidst claimants’ 13 page reply was a
reference to an affidavit and deposition testimony of Voudouris,
as well as photos of the MDOT after the collision taken by
Following that reference was an application:
Copies of the three referenced materials were attached to
The [c]laimants respectfully request that the
Court accept these photos (Trial Exhibit
"18") as rebuttal evidence, or in the
alternative re-open the record to allow Mr.
Voudouris to be examined on this issue.
(Doc. # 126 at ¶ 19.)2
No separate application for consideration
of this material was made.
The request was brought to the
Court’s attention when, in a letter dated April 7, 2017,
petitioner notified the Court that the "in [claimants’] final
submissions to the Court ([i.e.] Doc. #s 126 and 127), they
attached deposition transcripts, deposition exhibits,
photographs, affidavits and discovery responses none of which
were part of the record of this trial."
(Doc. # 130 at 1.)3
Items Claimants Seek to Add to the Record
The items claimants seek to add to the trial record
consist of (1) portions of the July 10, 2012 deposition of the
operator of the MDOT, the claimant Voudsouris, (2) a March 29,
2017 affidavit of claimant Voudouris discussing his July 10, 2012
The Court notes parenthetically that the application in the
post trial reply did not request consideration of the Voudouris
affidavit and deposition testimony although those materials were
included. So too, claimants’ April 17, 2017 letter seemingly
limits the request to consideration of the photographs.
Nonetheless, as the deposition testimony and affidavit were both
submitted to the Court and objected to by petitioner, the Court
considers whether they too should be considered.
Claimant Paul LaPera attached discovery responses to his
reply submission (see Doc. # 127 at ¶ 29) which were not admitted
into evidence at trial. No application for consideration of this
material has been made to the Court; petitioner objects to its
deposition, and (3) various photographs of the MDOT taken after
its collision with the Courier.
The three items are offered to
explain why "two of Petitioner's water taxi captains [who
responded almost immediately to the accident site] did not
observe the running lights of the 'MDOT' as being on after the
collision" (Doc. # 132 at 1), viz. they were "destroyed" by the
(Id. at 2.)
Positions of Parties
FIF understandably urges that "[n]o material that was
not part of the trial record in this case should be considered by
the Court. . . ."
(Doc. # 130 at 2.)
In their April 17, 2017 letter response, claimants
acknowledge both that (1) the challenged items were "not offered
into evidence" at the trial and, as a result, (2) "Petitioner’s
counsel has had no opportunity to object or comment upon these
photographs," but urge that
the photographs [and presumably the other
non-trial offered related items] are highly
relevant and were only submitted in rebuttal
to [p]etitioner’s extremely lengthy
opposition of [c]laimants’ initial
submission, and which opposition largely
focused on the post-collision observations by
two of [p]etitioner’s water taxi captains,
that they did not observe the running lights
of the "MDOT" as being on after the
collision, even if one of them admitted to
seeing the bow mounted search light on."
(Doc. # 132 at 1.)
Claimants request that this "oversight" by counsel (id.
at 2) – not further explained – be excused lest they be
Towards that end, as noted earlier, the suggestion
is made that an additional written submission by petitioner be
permitted, or that the record be reopened to allow further
This proceeding, claimants underscore, was tried
Reason Underlying Claimants' Request
Claimants’ use of the term "oversight" in their April
17, 2017 letter (Doc. # 132 at 2) is a misnomer.
specifically identified impetus for the current application is to
"rebut . . . [p]etitioner’s . . . opposition to [c]laimants’
initial [post trial] submission" vis-a-vis the condition of
MDOT’s running lights after the accident.
(Doc. # 132 at 1; see
also Doc. # 126 at ¶ 19 (requesting "that the Court accept these
photos . . . as rebuttal evidence, or in the alternative re-open
the record to allow Mr. Voudouris to be examined on this
The Court Declines to Adopt Claimants' First
Suggestion That the Proffered Items Simply be
Added to the Trial Record and That Petitioner
be Allowed to Submit a Short Reply With
Accompanying Responsive Materials, if any
Claimant Voudouris testified at the trial.
attorney sought then, as he does now, to introduce items (1) and
(2), supra – those being Voudouris' July 10, 2012 deposition and
an explanatory affidavit – that effort would have been
problematic in that each of the out-of-court statements appears
to be hearsay under Federal Rule of Evidence 801(c), not subject
to a recognized exception under Rules 803 or 804.
It may be that claimants have an evidentiary basis to
support their request but, if so, they have declined to share it
with the Court.
Certainly a post-trial afterthought, triggered
by a perusal of opposing counsel’s post-trial submission, is not
an appropriate predicate.
Otherwise the very purpose of a trial,
including the truth seeking function of cross-examination and the
significance of resting one’s case, is undermined absent a
sufficient countervailing benefit.4
The Court Also Declines to Adopt Claimants’
Alternative Suggestion, that Being to Reopen
the Record to Permit Voudouris, and Possibly
Others, to Testify Further About the Collision
and Resulting Damage to the MDOT
This suggestion by claimants, unlike the alternative
approach just discussed, has a semblance of legitimacy.
"reopening of a case after both sides have rested is a matter
within the sound discretion of the trial court."
Co. of Boston v. Merrill Lynch, Pierce, Fenner & Smith Inc., 622
F. Supp. 208, 213 (S.D.N.Y. 1985)(citing Zenith Radio Corp. v.
Hazeltine Research, Inc., 401 U.S. 321, 331 (1971)).
The photographs described in item (3), supra, will be
addressed during the discussion of claimants’ alternate
suggestion to reopen the trial so that Voudouris may re-take the
case was tried nonjury, if viewed in isolation, favors granting
the requested relief as does the desirability of providing
litigants with a full opportunity to present their respective
positions to the extent consistent with the rules of evidence and
of civil procedure.
But those two considerations are more than
counterbalanced given the following.
(1) Proffered Photographs are not Newly Discovered
The belatedly proffered evidence is not newly
Indeed, the post-collision photographs of the MDOT,
which constitute the core of the proffer, are listed in the Joint
(See Doc. # 132 at 1) ("The photographs in
question were identified in the Joint Pretrial Order. . . .").
(2) The Subject of Damage to the MDOT Caused by
Collision was Pursued by Claimants During the
The subject photographs are said by claimants to be
relevant as showing the damaged condition of MDOT’s port side
following the collision thereby helping to explain why several
witnesses who arrived shortly after the accident did not observe
the running lights on that side being illuminated.
significance of that proposed line of inquiry, however, did not
escape their counsel's grasp during the trial as evidenced by the
following excerpt from John J. Hession, Esq.’s cross-examination
of petitioner's witness Christopher Kelly:
You said that you noticed the other
vessel; the smaller vessel was heavily
damaged. Where was the area of damage?
On the Bow.
Was the area that was damaged where the port
navigation lights would be, Captain?
Yes, sir, it could be. I mean, the bow
navigation lights are on the bow. In a small
pleasure craft they will be there.
Did you see any port navigation light on the
Is it possible, Captain, that the port
navigation light was destroyed in the
MR. RUSSELL: Objection, your Honor.
THE COURT: Sustained as to what is possible.
Did you observe the damage to the other
I observed that it was heavily damaged.
Okay. Was one of the areas damaged the port
And you were not able to observe any running
light on that side, correct?
Trial Transcript ("Tr.") at 651-52.
Nonetheless the photographs were not shown to witness
A reading of the neighboring portions of the transcript
indicate that the "other vessel" referenced in the above excerpt
is the MDOT.
Kelly or any other witness in any effort to pursue this subject,
notwithstanding the high level of competence demonstrated by
claimants' seasoned counsel throughout the proceeding.
being so certainly suggests that a decision was made at that time
not to offer the photographs – which are not particularly
illuminating in and of themselves – into evidence.
Reason Cited to Reopen Record is Insufficient
Although, as noted previously, the reopening of a case
after the parties have rested is addressed to the sound
discretion of the trial judge, here all that is presented by way
of an excuse is (a) the invocation of the conclusory concept of
trial "oversight," and (b) the concomitant argument that the need
to place the photographs into evidence only become apparent after
reading petitioner's initial post-trial memorandum.
difficulty inherent in trying to harmonize (a) and (b), the
ground advanced does not, given the attendant circumstances,
warrant the relief requested.
See Bradford Trust Co. of Boston
v. Merrill Lynch, Pierce, Fenner & Smith Inc., 622 F. Supp. 208,
214 (S.D.N.Y. 1985)("[T]he Court should not utilize its
discretion to grant such relief unless the interests of justice
require it, nor should any party be afforded such relief where it
has not carried its burden of establishing that its failure to
produce the evidence which it now seeks to offer was not the
result of its own lack of diligence."); cf. Sequa Corp. v. GBJ
Corp., 156 F.3d 136, 144 (2d Cir. 1998)("Were [plaintiff] merely
ruing an oversight of its own in failing to introduce foreseeably
relevant evidence, . . ., we would not be inclined to disturb the
district court's decision" following a bench trial not to reopen
the trial record.).
Claimants have failed to meet their burden of
demonstrating that the failure to produce the evidence at issue
during trial was not either a conscious choice on their part, or
attributable to their own lack of diligence.
weighs heavily against reopening the trial.
As a result, this
alternate request is similarly denied.
Claimants' two pronged request, as set forth in their
post-trial reply (Doc. 126 at ¶ 19) and their letter to the Court
dated April 17, 2017 (Doc. # 132) is denied in toto.
Accordingly, the Court's decision on petitioner's application to
limit its potential liability to the value of the Courier, now
sub judice, will be decided on the evidence adduced at trial.
Dated: July 6, 2017
Central Islip, New York
DENIS R. HURLEY, U.S.D.J.
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