| Pipelias v City of New York |
| 2012 NY Slip Op 06591 [99 AD3d 685] |
| October 3, 2012 |
| Appellate Division, Second Department |
| Peter Pipelias, Appellant, v City of New York et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers, MargaretS. King, and Alan G. Krams of counsel), for respondent City of New York. Fabiani Cohen & Hall, LLP, New York, N.Y. (Michele V. Ficarra and Kevin B. Pollack ofcounsel), for respondent P&T Contracting Corp. Robert P. Tusa (Shapiro, Beilly & Aronowitz, LLP, New York, N.Y. [Roy J. Karlin], ofcounsel), for respondents Sharon E. Pollard and James J. Pollard.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment ofthe Supreme Court, Queens County (Hart, J.), entered March 7, 2011, which, upon the denial ofthe plaintiff's motion pursuant to CPLR 3126 to strike the answer of the defendant P&TContracting Corp., the granting of the defendants' separate motions, in effect, pursuant to CPLR4401 for judgment as a matter of law, and an order of the same court entered January 30, 2009,which, upon reargument, adhered to the original determinations denying the plaintiff's motionpursuant to CPLR 3126 to strike the answer of the defendant P&T Contracting Corp. andgranting the defendants' separate motions, in effect, pursuant to CPLR 4401 for judgment as amatter of law, is in favor of the defendants and against the plaintiff dismissing the complaint.
Ordered that the judgment is reversed, on the law, with one bill of costs payable by thedefendants appearing separately and filing separate briefs, the defendants' separate motions, ineffect, pursuant to CPLR 4401 for judgment as a matter of law are denied, the order enteredJanuary 30, 2009, is vacated, the complaint is reinstated, and the matter is remitted to theSupreme Court, Queens County, for a new trial before a different Justice.
The Supreme Court erred in granting the defendants' separate motions, in effect, pursuant toCPLR 4401 for judgment as a matter of law, and in dismissing the complaint before the plaintiffpresented his case. " 'A motion for judgment as a matter of law is to be made at the close of anopposing party's case or at any time on the basis of admissions (see CPLR 4401), and thegranting of such a motion prior to the close of the opposing party's case generally will bereversed as premature even if the ultimate success of the opposing party in the action isimprobable' " (Kamanou v Bert, 94AD3d 704, 704 [2012], quoting Burbige v Siben & Ferber, 89 AD3d [*2]661, 662 [2011]). Here, the court should have afforded the plaintiffthe opportunity to present evidence to the jury before granting the defendants' separate motionsfor judgment as a matter of law. Therefore, we reverse the judgment, deny the motions, vacatethe order entered January 30, 2009, made upon reargument, reinstate the complaint, and remit themater to the Supreme Court for a new trial, to be conducted before a different Justice.
The Supreme Court, however, did not improvidently exercise its discretion in denying theplaintiff's motion pursuant to CPLR 3126 to strike the answer of the defendant P&T ContractingCorp. (see CPLR 3126 [3]; Masik v Lutheran Med. Ctr., 92 AD3d 732 [2012]; Orgel v Stewart Tit. Ins. Co., 91 AD3d922, 924 [2012]). Angiolillo, J.P., Florio, Belen and Roman, JJ., concur.