Revette v. Coon

168 A.D.2d 933

Opinion

— Judgment unanimously reversed on the law with costs and new trial granted. Memorandum: Plaintiff contends on appeal that Supreme Court erred in finding, prior to the close of his proof, that he had abandoned his claim. We agree. The record does not support that finding.

Furthermore, the court erred in removing the credibility issue from the purview of the jury. The question of plaintiff’s credibility must be viewed in a light most favorable to the nonmoving party, and a motion to dismiss may not be granted where the issue depends upon the credibility of witnesses (Sadowski v Long Is. R. R. Co., 292 NY 448, 454-455; O’Neil v Port Auth., Ill AD2d 375, 376; Migdalski v Arcadian Lounge, 73 AD2d 960, 961). Because the court found against plaintiff before completion of his case, we are unable to determine whether the jury could have found for plaintiff by any rational process. (Appeal from judgment of Supreme Court, Onondaga County, Auser, J. — dismiss action.) Present — Callahan, J. P., Denman, Green, Balio and Davis, JJ.