Manou v Byfield

[*1] Manou v Byfield 2015 NY Slip Op 51762(U) Decided on December 1, 2015 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 1, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1873 K C

Joel Manou and 500 Flatbush Corp., Appellants,

against

Shanalys Byfield, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered May 17, 2013. The judgment, insofar as appealed from, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment, insofar as appealed from, is reversed, without costs, and the matter is remitted to the Civil Court for a new trial on plaintiffs' cause of action.

Plaintiffs commenced this action to recover unpaid rent from defendant, who, plaintiffs allege, is a former tenant. Insofar as is relevant to this appeal, the Civil Court, at a nonjury trial, refused to allow plaintiffs' witness to testify and, despite plaintiffs' attorney's assertion that plaintiffs were not prepared to rest their case, sua sponte dismissed plaintiffs' cause of action on the ground that they had failed to prove a prima facie case.

It is improper for a court, on its own motion, to direct a verdict for a party, as a party's failure to make such a motion is a concession that there is a question of fact to be decided (see George Foltis, Inc., v City of New York, 287 NY 108, 113 [1941]; Henry B. Root, Inc. v Lipstadt, 78 NYS2d 11, 12 [App Term, 1st Dept 1948]). Furthermore, " [a] motion for judgment as a matter of law is to be made at the close of an opposing party's case or at any time on the basis of admissions (see CPLR 4401), and the grant of such a motion prior to the close of the opposing party's case generally will be reversed as premature even if the ultimate success of the opposing party in the action is improbable' " (Harris v Hershkowitz, ___ Misc 3d ___, 2015 NY Slip Op 25334, *1 [App Term, 2d, 11th & 13th Jud Dists 2015], quoting Burbige v Siben & Ferber, 89 AD3d 661, 662 [2011]; see Schultz v Hi-Tech Constr. & Mgt. Serv., Inc., 124 AD3d 754 [2015]; Canteen v City of White Plains, 165 AD2d 856 [1990]; Goldstein v C.W. Post Ctr. of Long Is. Univ., 122 AD2d 196 [1986]). Here, the court's dismissal of plaintiffs' complaint was both premature and improper under the circumstances.

Accordingly, the judgment, insofar as appealed from, is reversed, and the matter is remitted to the Civil Court for a new trial on plaintiffs' cause of action.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: December 01, 2015