Sweet v Rios, 2014 NY Slip Op 00341 [2nd Dept. 2014]
Although the trial court suggested it would declare a mistrial and grant a new trial if either party moved for one so that certain matters could be "cleaned up," the defendants declined to seek a mistrial prior to the verdict. Accordingly, the defendants waived the potential remedy of a mistrial, and cannot argue on appeal that a mistrial should have been declared (see Rodriguez v Valentine, 20 AD3d 558, 559; Bonilla v New York City Health & Hosps. Corp., 229 AD2d 371; see also CPLR 4402; Tirado v Miller, 75 AD3d 153, 159).
Contrary to the defendants' contention, the trial court providently exercised its discretion in permitting the plaintiff to reopen her case to call her previously unavailable treating chiropractor as a witness and to introduce his complete office records into evidence. A trial court, in the exercise of discretion and for sufficient reasons, may allow a party to reopen and correct defects in evidence that have inadvertently occurred (see Kay Found. v S & F Towing Serv. of Staten Is., Inc., 31 AD3d 499, 501; Kennedy v Peninsula Hosp. Ctr., 135 AD2d 788, 790-791; see also Feldsberg v Nitschke, 49 NY2d 636, 643-644). When a motion to reopen is made, the trial court should consider whether the movant has provided a sufficient offer of proof, whether the opposing party is prejudiced, and whether significant delay in the trial will result if the motion is granted. Here, the plaintiff proffered a sufficient reason for the request and specified the evidence she would present if permitted to reopen, the defendants were not prejudiced by the presentation of such proof, and there was no undue delay (see Kay Found. v S & F Towing Serv. of Staten Is., Inc., 31 AD3d at 501; Frazier v Campbell, 246 AD2d 509, 510; Veal v New York City Tr. Auth., 148 AD2d 443, 444).
The emphasis is mine.
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