Opinion
Submitted October 5, 1999
November 30, 1999
In a child protective proceeding pursuant to Family Court Act article 10, the petitioner appeals, as limited by its brief, from so much of an order of the Family Court, Dutchess County (Pagones, J.), entered April 29, 1998, as, upon the denial of its application to reopen the fact-finding hearing to present evidence that the subject child was under 18 years of age, dismissed the petition.
Ian MacDonald, County Attorney, Poughkeepsie, N.Y. (Richard A. Ott of counsel), for appellant.
Brenner, Gordon Lane, Poughkeepsie, N.Y. (Gary E. Lane of counsel), for respondent.
Patricia L. Campanaro, Hopewell Junction, N.Y., Law Guardian for the child.
DAVID S. RITTER, J.P., FRED T. SANTUCCI, WILLIAM C. THOMPSON, DANIEL W. JOY, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law and as a matter of discretion, without costs or disbursements, the petition is reinstated, the petitioner's application to reopen the hearing is granted, and the matter is remitted to the Family Court, Dutchess County, for further proceedings consistent herewith.
The Family Court improvidently exercised its discretion in denying the petitioner's application for permission to reopen its direct case. A trial court, in the exercise of its discretion and for sufficient reasons, may allow a party to reopen and supply defects in evidence which have inadvertently occurred ( see, Benjamin v. Desai, 228 A.D.2d 764, 766; see also, People v. Olsen, 34 N.Y.2d 349; People v. Foy, 32 N.Y.2d 473; People v. Smith, 173 A.D.2d 416; Matter of Daniel A., 178 Misc.2d 90, 93-94; cf., Feldsberg v. Nitschke, 49 N.Y.2d 636, 643).
Here, the record indicates, inter alia, that the proof in question was omitted due to inadvertence ( Benjamin v. Desai, supra; Matter of Daniel A., supra), that the petitioner's application was not aimed at gaining a tactical advantage or creating delays ( Malhotra v. Gupta 226 A.D.2d 682), and that the respondent would suffer no prejudice if the application were to be granted ( see, Harding v. Noble Taxi Corp., 182 A.D.2d 365, 370; Kennedy v. Penninsula Hosp. Ctr., 135 A.D.2d 788, 791).
RITTER, J.P., SANTUCCI, THOMPSON, and JOY, JJ., concur.