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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 20, 1989

StatusPublished

Cited by1 cases

This text of 156 A.D.2d 941 (DiPasquale v. Baker-Roos, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

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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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.

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Bluebook (online)

156 A.D.2d 941, 548 N.Y.S.2d 827, 1989 N.Y. App. Div. LEXIS 16085, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dipasquale-v-baker-roos-inc-nyappdiv-1989.

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