| Gomez v Casiglia |
| 2009 NY Slip Op 08784 [67 AD3d 965] |
| November 24, 2009 |
| Appellate Division, Second Department |
| Jose A. Gomez, Appellant, v Frank G. Casiglia,Respondent. |
—[*1]
In an action to recover damages for personal injuries, the plaintiff appeals from so much of ajudgment of the Supreme Court, Suffolk County (Pitts, J.), entered July 23, 2008, as, after a jurytrial, and upon the granting of the defendant's motion pursuant to CPLR 4401 for judgment as amatter of law at the close of the plaintiff's case, is in favor of the defendant and against him,dismissing the complaint.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
Contrary to the plaintiff's contention, the Supreme Court properly granted the defendant'smotion pursuant to CPLR 4401 for judgment as a matter of law at the close of the plaintiff's case.In entertaining such a motion, the trial court must view the evidence in the light most favorableto the opponent, affording him or her every favorable inference which reasonably may be drawnfrom the evidence (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; Bryan v Staten Is. Univ. Hosp., 54AD3d 793, 793-794 [2008]; Farrukh v Board of Educ. of City of N.Y., 227 AD2d440, 441 [1996]). The focus must be on whether the plaintiff has made out a prima facie case ofliability, and the motion should be granted only if there is no rational process by which the jurycould find for the plaintiff (seePerricone-Bernovich v Gentle Dental, 60 AD3d 744, 744-745 [2009]; Elias v Bash, 54 AD3d 354, 357[2008]; Nichols v Stamer, 49 AD3d832, 833 [2008]). In this case, in which the plaintiff pedestrian was struck by a motorvehicle, the record is devoid of any competent evidence tending to establish that the defendantwas in any way connected with the offending vehicle. Accordingly, since no proof was adducedat trial to demonstrate that the defendant was the owner or operator of the vehicle, the plaintifffailed to make out a prima facie case of liability against the defendant, and the jury would havebeen required to engage in impermissible speculation in order to find in the plaintiff's favor.Under these circumstances, judgment was properly awarded in the defendant's favor (see Godlewska v Niznikiewicz, 8AD3d 430, 431 [2004]; Biggs v Mary Immaculate Hosp., 303 AD2d 702 [2003]).
In reaching our conclusion, we have not considered the additional documents which theplaintiff's counsel both inexplicably failed to place in evidence at trial and improperly includedin the record on appeal. Mastro, J.P., Santucci, Belen and Chambers, JJ., concur.