| Burbige v Siben & Ferber |
| 2011 NY Slip Op 07794 [89 AD3d 661] |
| November 1, 2011 |
| Appellate Division, Second Department |
| Raymond Burbige, Appellant, v Siben & Ferber et al.,Respondents. |
—[*1] Denise Kapralos O'Rourke, Old Brookville, N.Y., for respondents.
In an action to recover damages for legal malpractice, the plaintiff appeals from a judgmentof the Supreme Court, Nassau County (Mahon, J.), entered April 28, 2010, which, upon thegranting of that branch of the defendants' motion which was, in effect, pursuant to CPLR 4401for judgment as a matter of law, made before the close of the plaintiff's case, is in favor of thedefendants and against him dismissing the complaint.
Ordered that the judgment is reversed, on the law, with costs, the defendants' motion, ineffect, pursuant to CPLR 4401 for judgment as a matter of law is denied, the complaint isreinstated, and a new trial is granted.
The plaintiff commenced this legal malpractice action alleging, inter alia, that the defendantswere negligent in failing to diligently prosecute a products liability action against themanufacturer of a ladder which broke while the plaintiff was descending it. After the conclusionof opening statements, the defendants' counsel moved, in effect, pursuant to CPLR 4401 forjudgment as a matter of law or, in the alternative, for an offer of proof. The trial court reserveddecision. However, before the close of the plaintiff's case, the court granted the defendants'motion based upon the plaintiff's failure to make an offer of proof that he would have beensuccessful in the underlying products liability action by offering expert testimony that the ladderfrom which he fell was defective.
The trial court erred in granting that branch of the defendants' motion which was, in effect,pursuant to CPLR 4401 for judgment as a matter of law, and dismissing the action before theplaintiff rested (see CPLR 4401; Greenbaum v Hershman, 31 AD3d 607 [2006]; McGhee v NewYork City Hous. Auth., 243 AD2d 544 [1997]; Goldstein v C.W. Post Ctr. of Long Is.Univ., 122 AD2d 196 [1986]). A motion for judgment as a matter of law is to be made at theclose of an opposing party's case or at any time on the basis of admissions (see CPLR4401), and the grant of such a motion prior to the close of the opposing party's case generally willbe reversed as premature even if the ultimate success of the opposing party in the action isimprobable (see Cass v Broome County Coop. Ins. Co., 94 AD2d 822 [1983]; seealso Canteen v City of White Plains, 165 AD2d 856 [1990]; Goldstein v C.W. Post Ctr.of Long Is. Univ., 122 AD2d at 197; Page v City of New York, 79 AD2d 573 [1980];Cetta v City of New [*2]York, 46 AD2d 762 [1974];Budner v Giunta, 16 AD2d 780 [1962]; cf. Clifford v Sachem Cent. School Dist. atHolbrook, 271 AD2d 470, 470-471 [2000]). Therefore, the judgment must be reversed and anew trial granted to the plaintiff. Skelos, J.P., Hall, Lott and Roman, JJ., concur.