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In re Petition of Fire Island Ferries, Inc.

United States District Court, E.D. New York

July 6, 2017

IN THE MATTER OF THE PETITION OF FIRE ISLAND FERRIES, INC., AS OWNER OF THE COURIER FOR THE EXONERATION FROM AND LIMITATION OF LIABILITY

          For Petitioner Fire Island Ferries, Inc. Nicoletti Hornig & Sweeney Wall Street Plaza, David R. Hornig, Esq.

          For Claimants: Dougherty, Ryan, Giuffra, Zambito & Hession, John Joseph Hession, Esq. Joseph C. Tonetti, Esq.

          ORDER

          DENIS R. HURLEY, U.S.D.J.

         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, " (Doc. # 132 at 2). Alternatively, "[c]laimants respectfully request that the Court re-open the record and allow further testimony on this vital issue . . . ." Id.

         For the reasons provided infra, each of the alternative prongs of claimants' application is denied.

         Background

         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 Courier. After all of the evidence was presented, the parties rested. 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 Voudouris.[1] Following that reference was an application:

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 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 impact. (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 prejudiced. 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 ...


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