Donohue v. Losito
| Decision Date | 20 June 1988 |
| Citation | 529 N.Y.S.2d 813,141 A.D.2d 691 |
| Parties | James DONOHUE, Appellant, v. Ritchie LOSITO, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Keegan, Keegan & Associates, P.C., White Plains (Joseph J. Buderwitz, Jr., and Joseph M. Buderwitz, of counsel), for appellant.
Paul J. Miklus, New Rochelle, for respondents.
Before MOLLEN, P.J., and KUNZEMAN, WEINSTEIN and RUBIN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Marbach, J.), entered July 18, 1986, which, upon granting the defendants' motion at the close of the plaintiff's case, dismissed the complaint.
ORDERED that the judgment is affirmed, with costs.
The plaintiff in his complaint alleged, inter alia, that the three defendants assaulted him, causing him to fall forward onto his face, and that they conspired to injure him. The case proceeded to trial before a jury. At the close of the plaintiff's evidence, the court granted the defendants' motion to dismiss the complaint for failure to make out a prima facie case.
It is well settled that on a motion to dismiss a complaint for failure to establish a prima facie case, a plaintiff is entitled to the most favorable view of the available evidence. Before a complaint may be dismissed at the close of the plaintiff's evidence, there must be no rational basis upon which the jury might find in favor of the plaintiff ( see, Blum v. Fresh Grown Preserve Corp., 292 N.Y. 241, 54 N.E.2d 809; Merkle v. Smith, 66 A.D.2d 913, 914, 410 N.Y.S.2d 722). In the instant case, we find that dismissal at the close of the plaintiff's evidence was proper. The evidence showed that the plaintiff himself did not know how his injuries occurred. Further, two of the defendants, Lisa Schmidt and Patricia Brower, called as the plaintiff's witnesses, testified unequivocally that they did not see what had happened to the plaintiff. Indeed, their testimony placed all of the defendants in front of the plaintiff when he fell face down on the ground.
During the trial, the plaintiff sought to introduce a portion of a police report which indicated that the defendant Lisa Schmidt had stated to a police officer that the defendant Ritchie Losito had punched the plaintiff in the face causing him to fall. The defendant Schmidt had refused to sign the written statement, and denied having made such an oral statement to the police. We note that both the defendant Schmidt and the plaintiff denied having told the police shortly after the incident that the defendant Losito had struck the plaintiff. We find that the trial court properly admitted that portion of the police report for the sole purpose of impeaching the defendant Schmidt's credibility by showing her prior inconsistent statement. Pursuant...
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