Patterson v. Serota

• Decision Date: 07 December 1987
• Citation: 521 N.Y.S.2d 750,135 A.D.2d 521
• Parties: James PATTERSON, et al., Appellants, v. Nathan L. SEROTA, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 750

521 N.Y.S.2d 750

135 A.D.2d 521

James PATTERSON, et al., Appellants, v. Nathan L. SEROTA, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Dec. 7, 1987.

Paul S. Mirman, P.C., Brooklyn (Jeffrey H. Schwartz, on the brief), for appellants.

Before RUBIN, J.P., and KUNZEMAN, KOOPER and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc. the plaintiffs appeal, as limited by their brief, from so much of (1) a judgment of the Supreme Court, Nassau County (Roncallo, J.) entered July 23, 1986, and (2) a resettled judgment of the same court dated November 25, 1986, as upon granting the defendant's motion to dismiss made after the opening statement of the plaintiffs' counsel at the trial, dismissed the complaint.

ORDERED that the appeal from the judgment entered July 23, 1986, is dismissed, without costs or disbursements. That judgment was superseded by the resettled judgment dated November 25, 1986; and it is further

ORDERED that the appeal by the plaintiff June Patterson from the resettled judgment dated November 25, 1986, is dismissed, without costs or disbursements; and it is further

ORDERED that the resettled judgment dated November 25, 1986 is reversed, on the law, the motion is denied insofar as it sought dismissal of the cause of action asserted by the plaintiff James Patterson against the defendant Serota, and the matter is remitted to the Supreme Court, Nassau County for a new trial, with costs to abide the event.

The plaintiff James Patterson was injured when a scaffold on which he was working at a construction site collapsed. Subsequently, the plaintiffs commenced suit against the owner of the premises, the defendant Nathan L. Serota, and a lessee of the premises, the defendant Valley Gourmet, Ltd., alleging, inter alia, a cause of action under Labor Law § 240. At the trial of the action, the plaintiffs' counsel, in his opening statement, described the accident as above, although he did not specifically state that the defendant Serota was the owner of the premises on which the accident occurred. After counsel's opening statement, the court, sua sponte, took the plaintiffs' counsel aside and informed him that he believed the opening statement failed to set forth a prima facie case in that counsel had failed to allege that Serota had any involvement with the erection of the scaffolding. In response, counsel informed the court that Serota was the owner of the premises, and argued in response to defense counsels' subsequent motions to dismiss that Serota had, in fact, admitted ownership of the premises in his answer. The court, nevertheless, dismissed the complaint upon the ground that counsel's opening statement failed to set forth a prima facie case. The plaintiffs now appeal, limiting their contentions of error to the dismissal of the complaint as to the defendant Serota. We conclude that the trial court erred in dismissing the complaint insofar as it asserts an action by the plaintiff James Patterson against the defendant Serota.

Initially, we note that the appeal by the plaintiff June Patterson must be dismissed. The plaintiffs' attorney stated during his opening that he was voluntarily discontinuing the cause of action brought on behalf of Jane Patterson. Consequently, June Patterson was not aggrieved by the judgment dismissing the complaint insofar as the complaint was asserted by her (see, CPLR 5511).

With regard to the merits, dismissals after a plaintiff's opening statement are not favored (see, Hoffman House, New York v. Foote, 172 N.Y. 348, 351, 65 N.E. 169; Perretti v. City of New York, 132 A.D.2d 537, 517 N.Y.S.2d 272; Alexander v. Seligman, 131 A.D.2d 528, 516 N.Y.S.2d 260; Seminara v. Iadanza, 131 A.D.2d 457, 515 N.Y.S.2d 878; Wilson v. Schindler Haughton Elevator Corp., 118 A.D.2d 777, 500 N.Y.S.2d 310; O'Leary v. American Airlines, 100 A.D.2d 959, 960, 475 N.Y.S.2d 285). At bar, the plaintiff's second cause of action alleged violation of Labor Law § 240 in that the defendants failed to provide a safe place to work. It is well settled that the duty imposed by Section 240 is nondelegable and, where a violation of that duty proximately...