No 4401 before close of plaintiff’s evidence

CPLR R. 4401 Motion for judgment during trial

Montano v Spagnuolo, 2011 NY Slip Op 01445 (App. Div., 2nd 2011)

After granting the motion of the defendant Stuart Styles (hereinafter the defendant), made during trial, for a new trial, in effect, pursuant to CPLR 4402, the Supreme Court granted the defendant's motion, in effect, pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against him. In addition to the fact that the Supreme Court had previously granted the defendant's motion for a new trial, the motion, in effect, pursuant to CPLR 4401 was made before the close of the plaintiffs' evidence. Accordingly, that motion should not have been entertained (see CPLR 4401; Canteen v City of White Plains, 165 AD2d 856, 857; Goldstein v C.W. Post Ctr. of Long Is. Univ., 122 AD2d 196, 197; Balogh v H.R.B. Caterers, 88 AD2d 136, 141; Levy v Goldman, 252 App Div 781).

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