Canteen v. City of White Plains

• Decision Date: 24 September 1990
• Citation: 165 A.D.2d 856,560 N.Y.S.2d 320
• Parties: Isiah CANTEEN, Appellant, v. CITY OF WHITE PLAINS, Respondent, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 320

560 N.Y.S.2d 320

165 A.D.2d 856

Isiah CANTEEN, Appellant, v. CITY OF WHITE PLAINS, Respondent, et al., Defendants.

Supreme Court, Appellate Division Second Department.

Sept. 24, 1990.

Boeggeman, George, Jannace & Hodges, P.C., White Plains (Mark G. Barrett, of counsel), for appellant.

Joseph A. Maria, P.C., White Plains (Mark A. Lombardi, of counsel), for respondent.

Before BROWN, J.P., and KOOPER, HARWOOD and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for false imprisonment, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Marbach, J.), entered November 17, 1988, which upon granting judgment as a matter of law to the defendants prior to the conclusion of the plaintiff's case, is in favor of defendant City of White Plains and against him dismissing the complaint.

ORDERED that the judgment is reversed, on the law, and a new trial is granted, with costs to abide the event.

The Supreme Court dismissed the plaintiff's action, grounded on false imprisonment, after the plaintiff's attorney had presented two witnesses (who were, respectively, an employee of the respondent and an employee of the respondent's codefendant J.C. Penney Company, Inc.) and before the plaintiff's counsel had completed his proof, thereby preventing the plaintiff's counsel, inter alia, from reading from the deposition transcript of an adverse party (see, CPLR 3117). Although the Supreme Court made note of its view of the merits of the case, it appears that the dismissal was premised primarily upon the plaintiff's counsel's failure to produce the plaintiff, whose absence had evidently already delayed proceedings.

We have often noted that it is inappropriate to dismiss a case for failure of proof before the plaintiff rests and in the absence of a properly grounded motion by the defendant for that relief (see, e.g., Goldstein v. C.W. Post Center of Long Is. Univ., 122 A.D.2d 196, 504 N.Y.S.2d 734; Balogh v. H.R.B. Caterers, 88 A.D.2d 136, 452 N.Y.S.2d 220). The Supreme Court's dismissal here is unauthorized (see, Balogh v. H.R.B. Caterers, supra; cf., Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 573, 528 N.Y.S.2d 21, 523 N.E.2d 297). In any event, it is not clear from the evidence presented that the plaintiff's warrantless arrest was justified by "reasonable cause" (see, CPL 70.10, 140.10), a defense which the defendants did not formally plead (cf., Broughton v. State of New York, 37 N.Y.2d 451,...