| Glazer v Ottimo |
| 2011 NY Slip Op 04203 [84 AD3d 1023] |
| May 17, 2011 |
| Appellate Division, Second Department |
| Ronald Glazer, Appellant, v Louis Ottimo et al.,Respondents, et al., Defendant. |
—[*1] Law Offices of Bradley D. Schnur, Esq., P.C., Jericho, N.Y., for respondents.
In an action to recover damages for breach of contract and fraud, the plaintiff appeals from ajudgment of the Supreme Court, Nassau County (Phelan, J.), entered July 30, 2010, which, uponthe granting of the motion of the defendants Louis Ottimo and Anthony Ottimo pursuant toCPLR 4401 for judgment as a matter of law, made at the close of the plaintiff's case, is in favorof those defendants and against him dismissing the complaint insofar as asserted against thosedefendants.
Ordered that the judgment is affirmed, with costs.
A defendant's motion for judgment as a matter of law pursuant to CPLR 4401 should begranted only when, as here, accepting the plaintiff's evidence as true, and according that evidencethe benefit of every favorable inference that can reasonably be drawn from it, there is no rationalprocess by which the jury could find for the plaintiff against the defendant (see Centennial Contrs. Enters. v East N.Y.Renovation Corp., 79 AD3d 690, 691-692 [2010]; Dockery v Sprecher, 68 AD3d 1043, 1045 [2009]). Here, acceptingthe plaintiff's testimony at trial as true, and affording it every favorable inference, the plaintifffailed to make out a prima facie case that he had entered into a loan agreement with thedefendants Louis Ottimo and Anthony Ottimo (hereinafter together the defendants) or that themoney he tendered to them personally was not in the nature of an investment. Furthermore, theplaintiff failed to establish, prima facie, that he reasonably relied, to his detriment, on anymaterial misrepresentation of fact made to him by the defendants. Accordingly, the SupremeCourt properly granted the defendants' motion, made at the close of the plaintiff's case, forjudgment as a matter of law. Dillon, J.P., Balkin, Leventhal and Hall, JJ., concur.