DiPasquale v. Baker-Roos, Inc.

Appellate Division of the Supreme Court of New York

DiPasquale v. Baker-Roos, Inc.

156 A.D.2d 941, 548 N.Y.S.2d 827, 1989 N.Y. App. Div. LEXIS 16085

Appellate Division of the Supreme Court of the State of New York·Decided December 20, 1989·Published·Cited by 1 cases

Opinions

Order reversed on the law, with costs, complaint reinstated and new trial granted. Memorandum: Supreme Court erred when it dismissed plaintiffs’ causes of action and complaint in its entirety as against defendants, Baker-Roos, Inc. and Faultless Division of Bliss and Laughlin Industries after opening statements to the jury. Dismissal of a complaint on the plaintiffs’ opening statement is strongly disfavored (Seminara v Iadanza, 131 AD2d 457, 459). No complaint may be dismissed upon counsel’s opening unless the facts as alleged and presented by counsel preclude any possibility of plaintiffs’ recovery (Jurewicz v Lucarelli, 11 AD2d 751). That situation is not present in the instant record. In our view, the complaint and bills of particulars adequately apprised defendants of plaintiffs’ claims of negligence; thus, plaintiffs’ causes of action should be reinstated against all defendants and a new trial granted.

All concur, except Boomer, J., who dissents and votes to affirm, in the following memorandum.

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Order reversed on the law, with costs, complaint reinstated and new trial granted. Memorandum: Supreme Court erred when it dismissed plaintiffs’ causes of action and complaint in its entirety as against defendants, Baker-Roos, Inc. and Faultless Division of Bliss and Laughlin Industries after opening statements to the jury. Dismissal of a complaint on the plaintiffs’ opening statement is strongly disfavored (Seminara v Iadanza, 131 AD2d 457, 459). No complaint may be dismissed upon counsel’s opening unless the facts as alleged and presented by counsel preclude any possibility of plaintiffs’ recovery (Jurewicz v Lucarelli, 11 AD2d 751). That situation is not present in the instant record. In our view, the complaint and bills of particulars adequately apprised defendants of plaintiffs’ claims of negligence; thus, plaintiffs’ causes of action should be reinstated against all defendants and a new trial granted.

All concur, except Boomer, J., who dissents and votes to affirm, in the following memorandum.

DiPasquale v. Baker-Roos, Inc., 156 A.D.2d 941, 548 N.Y.S.2d 827, 1989 N.Y. App. Div. LEXIS 16085 (N.Y. Ct. App. 1989).

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156 A.D.2d 941 (DiPasquale v. Baker-Roos, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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