Nieves v. City of New York

Appellate Division of the Supreme Court of New York

Nieves v. City of New York

95 A.D.3d 612, 945 N.Y.S.2d 656

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

DecidedMay 15, 2012

StatusPublished

Cited by1 cases

This text of 95 A.D.3d 612 (Nieves v. City of New York) 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

Nieves v. City of New York, 95 A.D.3d 612, 945 N.Y.S.2d 656 (N.Y. Ct. App. 2012).

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Opinion

Order, Supreme Court, New York County (Lottie E. Wilkins, J.), entered on or about September 17, 2009, which granted defendant’s motion pursuant to CPLR 4401 to dismiss the complaint, made before the close of the plaintiffs case, unanimously reversed, on the law, without costs, defendant’s motion denied, the complaint reinstated, and the matter remanded for a new trial. Appeal from an order, same court and Justice, entered April 22, 2010, which denied plaintiffs motion pursuant to CPLR 5015 (a) (2) and (3) to vacate the order entered on or about September 17, 2009, unanimously dismissed, without costs, as academic.

The order granting defendant’s motion to dismiss the complaint is properly before this Court, as an appeal was taken from that order. In any event, we exercise our discretion to disregard any defect in the notice of appeal (see CPLR 5520 [c]).

Dismissal of the complaint pursuant to CPLR 4401, after the jury was impaneled, but before plaintiff had rested and his engineering expert had testified, was premature (see Alevy v Uminer, 88 AD3d 477, 477-478 [2011]). “A motion for judgment as a matter of law is to be made at the close of an opposing party’s case or at any time on the basis of admissions (see CPLR 4401), and the grant of such a motion prior to the close of the opposing party’s case generally will be reversed as premature even if the ultimate success of the opposing party in the action is improbable” (Burbige v Siben & Ferber, 89 AD3d 661, 662 [2011]). Here, the dismissal was not based on admissions by plaintiff and the judgment must be reversed and a new trial granted. Concur — Tom, J.E, Andrias, Renwick, DeGrasse and Abdus-Salaam, JJ.

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Order, Supreme Court, New York County (Lottie E. Wilkins, J.), entered on or about September 17, 2009, which granted defendant’s motion pursuant to CPLR 4401 to dismiss the complaint, made before the close of the plaintiffs case, unanimously reversed, on the law, without costs, defendant’s motion denied, the complaint reinstated, and the matter remanded for a new trial. Appeal from an order, same court and Justice, entered April 22, 2010, which denied plaintiffs motion pursuant to CPLR 5015 (a) (2) and (3) to vacate the order entered on or about September 17, 2009, unanimously dismissed, without costs, as academic.

The order granting defendant’s motion to dismiss the complaint is properly before this Court, as an appeal was taken from that order. In any event, we exercise our discretion to disregard any defect in the notice of appeal (see CPLR 5520 [c]).

Dismissal of the complaint pursuant to CPLR 4401, after the jury was impaneled, but before plaintiff had rested and his engineering expert had testified, was premature (see Alevy v Uminer, 88 AD3d 477, 477-478 [2011]). “A motion for judgment as a matter of law is to be made at the close of an opposing party’s case or at any time on the basis of admissions (see CPLR 4401), and the grant of such a motion prior to the close of the opposing party’s case generally will be reversed as premature even if the ultimate success of the opposing party in the action is improbable” (Burbige v Siben & Ferber, 89 AD3d 661, 662 [2011]). Here, the dismissal was not based on admissions by plaintiff and the judgment must be reversed and a new trial granted. Concur — Tom, J.E, Andrias, Renwick, DeGrasse and Abdus-Salaam, JJ.

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Bluebook (online)

95 A.D.3d 612, 945 N.Y.S.2d 656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nieves-v-city-of-new-york-nyappdiv-2012.

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