| Doland v Stephenson |
| 2011 NY Slip Op 08113 [89 AD3d 789] |
| November 9, 2011 |
| Appellate Division, Second Department |
| Keith Doland et al., Appellants, v James L. Stephenson etal., Respondents, et al., Defendants. (Action No. 1.) Keith Doland et al., Appellants, v Gilles T.Martin, Also Known as Gino Martinez, Respondent. (Action No. 2.) |
—[*1] Lewis Johs Avallone Aviles, LLP, Melville, N.Y. (Michael T. Colavecchio and SethWeinberg of counsel), for respondents James L. Stephenson and Norsk Metal, Inc. Burke Lipton & Gordon, White Plains, N.Y. (Stephen P. Falvey of counsel), for respondentGilles T. Martin, also known as Gino Martinez.
In two related actions to recover damages for personal injuries, etc., which were joined fortrial, the plaintiffs appeal, as limited by their brief, from so much of a judgment of the SupremeCourt, Westchester County (Smith, J.), entered October 1, 2010, as, after a trial on the issue ofdamages, and upon the granting of the motion of the defendants James L. Stephenson and NorskMetal, Inc., pursuant to CPLR 4401, made at the close of evidence, to dismiss the complaint inaction No. 1 insofar as asserted against them, and upon the granting of the motion of thedefendant Gilles T. Martin, also known as Gino Martinez, pursuant to CPLR 4401, made at theclose of evidence, to dismiss the complaint in action No. 2, is in favor of those defendants andagainst them, dismissing the complaint in action No. 1 insofar as asserted against the defendantsJames L. Stephenson and Norsk Metal, Inc., and dismissing the complaint in action No. 2.[*2]
Ordered that the judgment is affirmed insofar as appealedfrom, with one bill of costs to the respondents appearing separately and filing separate briefs.
A trial court may grant a motion pursuant to CPLR 4401 for judgment as a matter of lawwhere it finds that, upon the evidence presented, "there is no rational process by which the facttrier could base a finding in favor of the nonmoving party" (Szczerbiak v Pilat, 90 NY2d553, 556 [1997]). In considering the motion, "the trial court must afford the party opposing themotion every inference which may properly be drawn from the facts presented, and the facts mustbe considered in a light most favorable to the nonmovant" (id. at 556).
Since there was insufficient evidence to show that the plaintiffs sustained any damage as aresult of the subject accident, the Supreme Court properly granted the motions pursuant to CPLR4401 for judgment as a matter of law. There was insufficient evidence from which the jury couldrationally find that the plaintiff Keith Doland sustained an injury as a result of the first of the twosubject accidents, or sustained an injury, or had an injury exacerbated, as a result of the secondsubject accident (cf. Ogunti v Hellman, 281 AD2d 404, 405 [2001]).
The plaintiffs' remaining contentions are without merit. Dillon, J.P., Dickerson, Chambersand Miller, JJ., concur.