Musso v. St. Thomas Aquinas Church

213 A.D.2d 529, 624 N.Y.S.2d 912, 1995 N.Y. App. Div. LEXIS 2921

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Jackson, J.), entered December 8, 1993, which, inter alia, dismissed the complaint at the completion of the plaintiff’s opening statement for failure to state a cause of action.

Ordered that the judgment is affirmed, with costs.

While dismissal of a complaint at the end of a plaintiff’s opening statement is generally disfavored by the courts, it is permitted in those instances where, as here, the plaintiff’s counsel, by admissions and statements of facts, subverts the plaintiff’s alleged cause of action (see, De Vito v Katsch, 157 AD2d 413; McLoughlin v Holy Cross High School, 135 AD2d 513). Lawrence, J. P., Pizzuto, Joy and Altman, JJ., concur.