| Miller v Bah |
| 2010 NY Slip Op 04753 [74 AD3d 761] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Harold Miller, Respondent, v Mamadou Bah,Appellant. |
—[*1] Jonathan I. Edelstein, New York, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), datedJanuary 13, 2010, as, in effect, upon reargument, vacated its prior determination in an orderdated August 19, 2009, granting his motion pursuant to CPLR 4401 for judgment as a matter oflaw based upon the plaintiff's failure to establish a prima facie case, and thereupon denied hismotion pursuant to CPLR 4401 for judgment as a matter of law based upon the plaintiff's failureto establish a prima facie case, and restored the case to the trial calendar.
Ordered that the order dated January 13, 2010, is reversed insofar as appealed from, on thelaw, on the facts, and in the exercise of discretion, with costs, and, upon reargument, the originaldetermination in the order dated August 19, 2009, granting the defendant's motion pursuant toCPLR 4401 for judgment a matter of law based upon the plaintiff's failure to establish a primafacie case is adhered to.
At trial, the plaintiff testified that on June 28, 2004, he was working as a "flagman" for aconstruction company engaged in a construction project on 90th Street in Manhattan. Heexplained that he stood on 90th Street, in the roadway, directing traffic and pedestrians. He alsoindicated that 90th Street was a one-way thoroughfare with traffic flowing from west to east, andwith vehicles parked on both sides of the street. The plaintiff recalled that around 10:15 a.m., heallowed a garbage truck, two cars, and a Lincoln Town Car to drive down 90th Street. Hetestified that the garbage truck then parked on 90th Street in a manner that blocked the trafficflow. He then indicated that the Town Car drove in reverse the wrong way down 90th Street, andended up driving over his foot.
The plaintiff testified that after the accident, the driver of the Town Car parked the car, gotout, came over to him, and spoke with him. The plaintiff also testified that police officersresponded to the accident scene.
After he testified, the plaintiff, who did not identify the defendant in court as the driver [*2]of the offending vehicle, rested his case without calling anotherwitness, or offering an accident report into evidence. The defendant, who did not present a case,then moved pursuant to CPLR 4401 for judgment as a matter of law. He argued that the plaintifffailed to establish that he owned or operated the offending vehicle and, thus, that the plaintifffailed to make out a prima facie case of liability against him.
After first considering the evidence presented by the plaintiff, the Supreme Court nextconsidered certain admissions made by the defendant. In this regard, the complaint containedcertain allegations concerning the defendant's ownership and operation of a particular vehicle atthe time of the accident, which the defendant failed to address in his answer. The defendanttherefore was deemed to have admitted the truth of those allegations (see CPLR 3018[a]; Maplewood, Inc. v Wood, 21AD3d 933 [2005]), and "admissions . . . in pleadings are always in evidencefor all the purposes of the trial of [an] action" (Braun v Ahmed, 127 AD2d 418, 422[1987] [internal quotation marks omitted]). The Supreme Court found that even when theevidence was coupled with the defendant's admissions, the plaintiff failed to "link" the defendantto the offending vehicle. Thus, the Supreme Court granted the defendant's motion pursuant toCPLR 4401 for judgment as a matter of law.
Subsequently, the plaintiff moved, in effect, for leave to reargue his opposition to thedefendant's motion pursuant to CPLR 4401 for judgment as a matter of law. In the orderappealed from, the Supreme Court found that as the plaintiff asserted, it had "overlooked" aparticular admission made by the defendant in determining the defendant's motion. The SupremeCourt then, in effect, granted the plaintiff leave to reargue, and, upon reargument, determinedthat, based on that admission, the jury could have "drawn" a "reasonable inference as to [thedefendant's] liability." Hence, the Supreme Court, inter alia, denied the defendant's motion, andrestored the case to the trial calendar. However, the Supreme Court should have adhered to itsoriginal determination granting the defendant's motion pursuant to CPLR 4401 for judgment as amatter of law.
CPLR 4401 provides that "[a]ny party may move for judgment with respect to a cause ofaction or issue upon the ground that the moving party is entitled to judgment as a matter of law,after the close of the evidence presented by an opposing party with respect to such cause ofaction or issue." A trial court should grant a motion pursuant to CPLR 4401 when, upon theevidence presented, there is no rational process by which the trier of fact could base a finding infavor of the nonmoving party (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]). Inconsidering the motion, the trial court must afford the party opposing the motion every inferencewhich may be properly drawn from the facts presented, and the facts must be considered in alight most favorable to the nonmovant (id.).
In order to make out a prima facie case of liability against the defendant, the plaintiff wasrequired to establish that the defendant owned or operated the offending vehicle (see Gomez v Casiglia, 67 AD3d965, 966 [2009]). However, the evidence and the defendant's admissions established, atmost, that the defendant was the owner and operator of one of several vehicles being operated ator near the accident scene at the time of the accident. Under these circumstances, the plaintiff,who was required to "prove his case . . . by a preponderance of the evidence"(Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191, 194 [1976]), failed to makeout a prima facie case of liability against the defendant (cf. Bernstein v City of NewYork, 69 NY2d 1020, 1021-1022 [1987]; Ingersoll v Liberty Bank of Buffalo, 278NY 1, 7 [1938]). Fisher, J.P., Covello, Hall and Sgroi, JJ., concur.