Dicker v. Waldbaum's, Inc.

56 A.D.2d 621, 391 N.Y.S.2d 677, 1977 N.Y. App. Div. LEXIS 10712

Opinion

In an action, inter alia, to recover damages for assault and battery, plaintiffs appeal from a judgment of the Supreme Court, Queens County, entered July 7, 1975, which is against them (1) and in favor of defendant Waldbaum’s, Inc., upon the trial court’s dismissal of the complaint against the said defendant and (2) in favor of the other defendants, upon a jury verdict, at a trial limited to the issue of liability. Judgment, insofar as it is in favor of defendant Waldbaum’s, Inc., affirmed, without costs or disbursements. Judgment, insofar as it is in favor of the remaining defendants, reversed, on the law and in the interest of justice, action severed, and new trial granted as between plaintiffs and the remaining defendants as to the issue of liability, with costs to abide the event. No fact questions were presented for review. A review of the record shows that the dismissal of the complaint as against defendant Waldbaum’s, Inc., for the failure of plaintiffs to establish a prima facie case was proper. It also shows that the conduct of the trial court, inter alia, of indicating on numerous occasions that counsel for plaintiffs was really wasting the court’s time by his manner of presenting his case, that some of counsel’s evidence was useless except for clouding the issues, and (again, on several occasions) that counsel was worthy of being held in contempt of court, was so excessive as to irremediably prejudice the jury against the plaintiffs. Rabin, Acting P. J., Shapiro, Titone and O’Connor, JJ., concur.