NOGA v. NOGA

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Supreme Court, Appellate Division, Third Department, New York.

Janet NOGA, Respondent, v. Michael NOGA, Appellant.

Decided: January 30, 1997

Before CARDONA, P.J., and MIKOLL, CREW, YESAWICH and SPAIN, JJ. Litz & Litz (Robert M. Cohen, Ballston Lake, of counsel), Schenectady, for appellant. Grasso, Rodriguez, Grasso & Zyra (Nicholas E. Tishler, Niskayuna, of counsel), Schenectady, for respondent.

This action for divorce was commenced in May 1989.   A trial was conducted and Supreme Court issued a decision dated March 3, 1994 which, inter alia, determined a value of $29,473 for defendant's interest in a certain pension plan.   The court based its valuation on a letter dated March 19, 1993 which was submitted as an exhibit into evidence at trial by plaintiff.   A judgment of divorce incorporating the court's decision was issued and entered on August 4, 1994.   Although defendant filed an appeal, it was never perfected.   Thereafter, by affidavit dated August 31, 1994, defendant requested the court to reconsider its decision and to reopen the trial.   In support of his motion, defendant relied on a letter dated March 28, 1994 which set the value of the pension at a lower figure.   Supreme Court denied the motion on the ground that defendant failed to explain why such evidence was not presented at trial.   Defendant appeals.

We affirm.   There is no evidence in the record that defendant ever objected at trial to the submission of the March 19, 1993 letter into evidence or that he contested the calculation of his interest in the pension plan by offering an alternative valuation of his interest.   There is no proof that defendant was not afforded sufficient time for discovery.   Nor is there evidence that defendant was denied the opportunity to submit proof on this issue.   Defendant has also failed to offer any reason why he did not act more expeditiously in obtaining the information which he now seeks to submit as evidence (see, Mauro v. Mauro, 148 A.D.2d 684, 685, 539 N.Y.S.2d 432).   Under these circumstances, we cannot say that Supreme Court abused its discretion in denying the motion to reopen the trial so that defendant could present this additional evidence (see, Sperbeck v. Sperbeck, 215 A.D.2d 966, 627 N.Y.S.2d 163;  Shapiro v. Shapiro, 151 A.D.2d 559, 560, 542 N.Y.S.2d 339;  see also, Matter of Gagliardi v. Department of Motor Vehicles, 144 A.D.2d 882, 535 N.Y.S.2d 203, lv denied 74 N.Y.2d 606, 544 N.Y.S.2d 820, 543 N.E.2d 85).

ORDERED that the order is affirmed, with costs.

CARDONA, Presiding Justice.

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