United States District Court, E.D. New York
IN THE MATTER OF THE PETITION OF FIRE ISLAND FERRIES, INC., AS OWNER OF THE COURIER FOR THE EXONERATION FROM AND LIMITATION OF LIABILITY
Petitioner Fire Island Ferries, Inc. Nicoletti Hornig &
Sweeney Wall Street Plaza, David R. Hornig, Esq.
Claimants: Dougherty, Ryan, Giuffra, Zambito & Hession,
John Joseph Hession, Esq. Joseph C. Tonetti, Esq.
R. HURLEY, U.S.D.J.
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.
reasons provided infra, each of the alternative
prongs of claimants' application is denied.
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").
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.)
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. Following that reference was an
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.) 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.)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.
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.)
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
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.)
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