Bignami v. Caristo Const. Corp.

• Citation: 326 N.Y.S.2d 129,37 A.D.2d 851
• Parties: Mario BIGNAMI, Appellant, v. CARISTO CONSTRUCTION CORP. et al., Respondents, et al., Defendant (and a third-party action).
• Decision Date: 18 October 1971
• Court: New York Supreme Court Appellate Division

Page 129

326 N.Y.S.2d 129

37 A.D.2d 851

Mario BIGNAMI, Appellant, v. CARISTO CONSTRUCTION CORP. et al., Respondents, et al.,

Defendant (and a third-party action).

Supreme Court, Appellate Division, Second Department.

Oct. 18, 1971.

Craig & Palmieri, Levittown, for appellant; Sergi & Fetell and Lester E. Fetell, Brooklyn, on the brief.

Hanlon & Dawe, New York City, for respondent, Caristo Construction Corp.; Montfort, Healy, McGuire & Salley, E. Richard Rimmels, Jr., Garden City, of counsel.

Katz & Garntman, Arthur N. Seiff, new York City, for respondent, Alpine Sheet Metal & Ventilating Co., Inc.

Before RABIN, P.J., and HOPKINS, MUNDER, LATHAM and CHRIST, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Nassau County, entered February 8, 1971, in favor of defendants Caristo Construction Corp. and Alpine Sheet Metal & Ventilating Co., Inc., upon the trial court's dismissal of the complaint on the opening statement of plaintiff's counsel to the jury.

Judgment reversed, on the law, and new trial granted, with costs to abide the event.

Upon the record before us, which includes the pleadings, as well as the opening statement, it was an improvident exercise of discretion to nonsuit plaintiff on the opening of counsel. The facts as alleged and as presented by counsel are Not such as to preclude any possibility of recovery (Rivera v. Board of Educ. of City of New York, 11 A.D.2d 7, 201 N.Y.S.2d 372).