4401 Judgment as a matter of law

Boriello v Loconte, 2020 NY Slip Op 02035 [2d Dept. 2020]

” A motion for judgment as a matter of law pursuant to CPLR 4401 may be granted where the trial court determines that, upon the evidence presented, there is no rational process by which the [trier of fact] could base a finding in favor of the nonmoving party'” (PAS Tech. Servs. v Middle Vil. Healthcare Mgt., LLC, 92 AD3d 742, 744, quoting C.K. Rehner, Inc. v Arnell Constr. Corp., 303 AD2d 439, 440). “In considering such a motion, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in light most favorable to the nonmovant'” (PAS Tech. Servs., Inc. v Middle Vil. Healthcare Mgt., LLC, 92 AD3d at 744, quoting Robinson v 211-11N., LLC, 46 AD3d 657, 658).

Here, the Supreme Court, in announcing its decision, stated that it expressly considered and relied on the defendants’ evidence. This was error, as it was improper for the court to consider, on a motion for a directed verdict made before the moving party had rested and the opposing party had an opportunity to present rebuttal evidence, the evidence introduced by the moving party (see Levine v Charlow, 254 App Div 416, 418; Dillon v Cortland Baking Co., 224 App Div 303, 305).

Thus, in the context of a motion for a directed verdict, the Supreme Court should not have accorded the defendants’ expert’s testimony more weight than that of the plaintiff’s expert. In determining a motion for a directed verdict, the trial court “must not engage in a weighing of the evidence, nor may it direct a verdict where the facts are in dispute, or where different inferences may be drawn or the credibility of witnesses is in question” (Hernandez v Pappco Holding Co., Ltd., 136 AD3d 981, 983 [internal quotation marks omitted]; see Matter of David WW. v Laureen QQ., 42 AD3d 685, 686). Accordingly, the judgment must be reversed, the defendants’ motion for a directed verdict denied, the amended complaint reinstated, and the matter remitted to the Supreme Court, Kings County, for a new trial.