| Kamanou v Bert |
| 2012 NY Slip Op 02458 [94 AD3d 704] |
| April 3, 2012 |
| Appellate Division, Second Department |
| Gisele Kamanou, Appellant, v Yvonne Bert, Respondent,et al., Defendant. |
—[*1] Carolyn V. Minter, Ossining, N.Y., for respondent.
In an action to recover damages for defamation and tortious interference with contract, theplaintiff appeals from a judgment of the Supreme Court, Westchester County (Lefkowitz, J.),entered May 7, 2010, which, upon the granting of a motion of the defendant Yvonne Bert, ineffect, pursuant to CPLR 4401 for judgment as a matter of law, made before the close of theplaintiff's case, is in favor of the defendant Yvonne Bert and against her dismissing the complaintinsofar as asserted against that defendant.
Ordered that the judgment is reversed, on the law, with costs, the motion of the defendantYvonne Bert, in effect, pursuant to CPLR 4401 for judgment as a matter of law is denied, thecomplaint is reinstated, and a new trial is granted.
The Supreme Court erred in granting the motion of the defendant Yvonne Bert, in effect,pursuant to CPLR 4401 for judgment as a matter of law, and dismissing the complaint insofar asasserted against her before the plaintiff presented her case (see CPLR 4401). "A motionfor judgment as a matter of law is to be made at the close of an opposing party's case or at anytime on the basis of admissions (see CPLR 4401), and the grant of such a motion prior tothe close of the opposing party's case generally will be reversed as premature even if the ultimatesuccess of the opposing party in the action is improbable" (Burbige v Siben & Ferber, 89 AD3d 661, 662 [2011]; seeCanteen v City of White Plains, 165 AD2d 856 [1990]; Goldstein v C.W. Post Ctr. ofLong Is. Univ., 122 AD2d 196 [1986]; Cass v Broome County Coop. Ins. Co., 94AD2d 822, 823 [1983]; Page v City of New York, 79 AD2d 573 [1980]). Although theplaintiff, who appeared at trial pro se, advised the Supreme Court that she did not bring anywitnesses, the Supreme Court should have afforded her the opportunity to testify with aninterpreter and present evidence on her own behalf (see CPLR 4512) before grantingBert's motion for judgment as a matter of law pursuant to CPLR 4401. Therefore, the judgmentmust be reversed, the motion denied, the complaint reinstated, and a new trial granted.
The plaintiff's remaining contentions either are without merit or not properly before us onthis appeal (see CPLR 5501 [a] [1]). Dillon, J.P., Angiolillo, Florio and Cohen, JJ.,concur.