Kemp v. Lynch

283 A.D.2d 934, 725 N.Y.S.2d 257, 2001 N.Y. App. Div. LEXIS 4517

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 2, 2001
• Status: Published

Opinion

—Appeal unanimously dismissed without costs. Memorandum: Plaintiff commenced this action asserting causes of action for malicious prosecution and false arrest, and causes of action pursuant to 42 USC § 1983. At the close of plaintiff’s proof at trial, defendants made an oral motion to dismiss the complaint. Supreme Court granted that motion in part and dismissed the false arrest and 42 USC § 1983 causes of action. The jury returned a verdict in favor of plaintiff on the malicious prosecution cause of action against defendant Richard T. Lynch only. Lynch appealed from the judgment entered upon the jury verdict, and we affirmed (Kemp v Lynch, 275 AD2d 1024). Plaintiff now appeals from a post-judgment order that reduced to writing the court’s dismissal of the 42 USC § 1983 causes of action during trial. The appeal must be dismissed. The court’s decision on defendants’ motion made during trial was a trial ruling and thus is reviewable only on an appeal from the final judgment (see, CPLR 5501 [a] [3]; Safe Flight Instrument Corp. v Atlantic Aviation Corp., 205 AD2d 747, 748; City of Elmira v Walter, 111 AD2d 553; Katz v Katz, 68 AD2d 536, 542). No appeal lies from a trial ruling, even if that ruling is later memorialized in an order (see, Camacho v City of New York, 218 AD2d 725; Radford v Sheridan Prods., 181 AD2d 667, 668; Brown v Micheletti, 97 AD2d 529). (Appeal from Order of Supreme Court, Oneida County, Grow, J. — 42 USC § 1983.) Present — Pigott, Jr., P. J., Pine, Hayes, Kehoe and Burns, JJ.