Opinion
June 12, 1989
Appeal from the Supreme Court, Kings County (Schneier, J.).
Ordered that the appeal from the order is dismissed, without costs or disbursements; and it is further,
Ordered that the judgment is modified by (1) deleting the provision thereof valuing the parties' one-half interest in the marital residence at $84,500 and substituting therefor a provision valuing the parties' one-half interest in the marital residence at $89,500, (2) increasing the total value of marital property to $166,715, and (3) increasing the defendant's distributive award to $25,183, payable in three equal annual installments of $8,394.33; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
Contrary to the defendant's contentions, the trial court did not improvidently exercise its discretion by denying his motion to reopen the trial so that he could present additional evidence in support of his claims for ancillary relief. Although the court possesses the discretion to reopen a case after a party has rested, "such discretion should be sparingly exercised" (Mulligan v. Wetchler, 39 A.D.2d 102, 105, appeal dismissed 30 N.Y.2d 951). The defendant moved to reopen the case approximately five months after the close of all evidence, and approximately 3 1/2 months after the trial court issued its memorandum decision. While it may be appropriate to reopen a case to enable a party to present additional evidence prior to the presentation of the adversary's evidence (see, Felice v Gershkon, 34 A.D.2d 1008), an untimely motion to reopen should be denied (see, Mulligan v. Wetchler, supra; Matter of Wareham v Wareham, 34 A.D.2d 647), especially when such a motion is made after the court rules on the relevant issue, the movant fails to disclose the nature of the omitted evidence and the evidence sought to be introduced is not newly discovered (see, Oregon Leopold Day Care Center Assn. v. Di Marco Constructors Corp., 104 A.D.2d 719).
Furthermore, we find that the court did not err by failing to grant the defendant an equitable share of the value of his wife's pension. Although that portion of the value of the pension which accrued during the marriage constitutes marital property subject to equitable distribution (see, Majauskas v. Majauskas, 61 N.Y.2d 481), the defendant failed to offer any proof as to its value. Since the defendant failed to meet his burden of proving the value of the plaintiff's pension, the court correctly refused to award him a share thereof (see, Tabriztchi v. Tabriztchi, 130 A.D.2d 652; Del Gado v. Del Gado, 129 A.D.2d 426; Michalek v Michalek, 114 A.D.2d 655, lv denied 69 N.Y.2d 602).
However, the court did err by failing to include as marital property $5,000 representing one half of the $10,000 down payment contributed by the plaintiff's parents to the purchase of the marital residence. This two-family house was jointly owned by the plaintiff and her mother as tenants in common. One half of the stipulated value of the house was correctly included in marital property. However, the evidence did not support the court's finding that the $10,000 contributed by the plaintiff's parents was a loan. Thus, one half of this amount was includable as marital property, 40% of which should have been credited to the defendant pursuant to the court's division of marital assets (see, Kobylack v. Kobylack, 111 A.D.2d 221; see also, Michalek v Michalek, supra).
We have reviewed the defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit. Bracken, J.P., Kunzeman, Eiber and Spatt, JJ., concur.