Premature 4401

CPLR R. 4401

Bodge v Red Hook Senior Hous. Dev. Fund Co., Inc., 2011 NY Slip Op 05644 (2nd Dept. 2011)

Pursuant to CPLR 4401, "[a]ny party may move for judgment with respect to a cause of action or issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presented by an opposing party with respect to such cause of action or issue." At the time the plaintiff moved pursuant to CPLR 4401 for judgment as a matter of law on the issue of liability on his cause of action alleging a violation of Labor Law § 240(1), the defendants had not completed their case. Therefore, the plaintiff's motion was premature, and the plaintiff never renewed his motion (see DeWall v Owl Homes of Victor, 213 AD2d 977; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C4401:4, C4401:5). 

The plaintiff's contention that the jury's verdict is inconsistent is not preserved for appellate review, since he did not raise that issue before the jury was discharged (see Rivera v MTA Long Is. Bus, 45 AD3d 557, 557-558; Delacruz v Galaxy Elec., 300 AD2d 278).

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