Sargiss v. Magarelli

• Decision Date: 19 March 2014
• Court: New York Supreme Court — Appellate Division
• Parties: Frieda SARGISS, appellant, v. Marlene MAGARELLI, executor of the estate of Isaac G. Sargiss, also known as Isaac George Sarkissian, et al., respondents.

115 A.D.3d 842
982 N.Y.S.2d 362
2014 N.Y. Slip Op. 01737

Frieda SARGISS, appellant,
v.
Marlene MAGARELLI, executor of the estate of Isaac G. Sargiss, also known as Isaac George Sarkissian, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

March 19, 2014.

Raoul Felder and Partners, P.C., New York, N.Y. (Myrna Felder of counsel), for appellant.

Bleakley Platt & Schmidt, LLP, White Plains, N.Y. (William H. Mulligan, Jr., of counsel), for respondent Marlene Magarelli,

[982 N.Y.S.2d 363]

executor of the estate of Isaac G. Sargiss, also known as Isaac George Sarkissian.

Joseph S. Garafola, Elmsford, N.Y. (Lawrence S. Warshaw of counsel), for respondents Julius Sargiss and Panrad Automotive Industries, Inc.

In an action to recover damages for fraud, the plaintiff appeals from an order of the Supreme Court, Westchester County (Loehr, J.), entered June 5, 2012, which granted the oral motion of the defendant Marlene Magarelli, executor of the estate of Isaac G. Sargiss, also known as Isaac George Sarkissian, and the separate oral motion of the defendants Julius Sargiss and Panrad Automotive Industries, Inc., pursuant to CPLR 4401, made at the close of the plaintiff's case at a nonjury trial, for judgment as a matter of law dismissing the complaint insofar as asserted against each of them.

ORDERED that on the Court's own motion, the notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted ( seeCPLR 5701[c] ); and it is further,

ORDERED that the order is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

“ ‘A trial court's grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party’ ” ( Clarke v. Phillips, 112 A.D.3d 872, 874, 978 N.Y.S.2d 281, quoting Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346). “ ‘In considering the motion, the trial court must afford the party opposing the motion every inference which may be properly drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant’ ” ( Clarke v. Phillips, 112 A.D.3d at 874, 978 N.Y.S.2d 281, quoting Miller v. Bah, 74 A.D.3d 761, 763, 902 N.Y.S.2d 174;see Szczerbiak v. Pilat, 90 N.Y.2d at 556, 664 N.Y.S.2d 252, 686 N.E.2d...