De Vito v. Katsch

• Decision Date: 29 May 1990
• Citation: 556 N.Y.S.2d 649,157 A.D.2d 413
• Parties: Stephen DE VITO, Appellant, v. Harold KATSCH, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 649

556 N.Y.S.2d 649

157 A.D.2d 413

Stephen DE VITO, Appellant, v. Harold KATSCH, Respondent.

Supreme Court, Appellate Division,

Second Department.

May 29, 1990.

Pirraglia, Rosenblatt & McGarrity, White Plains, for appellant.

Mead, Dore, Voute, White Plains, (Timothy P. Coon, of counsel), for respondent.

Before THOMPSON, J.P., and RUBIN, ROSENBLATT and MILLER, JJ.

ROSENBLATT, Justice.

On the appeal before us, the defendant moved to dismiss the complaint immediately following the plaintiff's opening statement, asserting that the opening statement was insufficient to establish a prima facie case. Affording the plaintiff no opportunity to expand on the opening by way of an attempted offer of proof, the trial court dismissed the complaint. For the reasons which follow, the judgment is reversed, and a new trial is granted.

We take the opportunity to discuss the law relating to the purpose of the opening statement in civil trials, and to articulate appropriate standards to be applied by a trial court when an opening statement is challenged as deficient.

The civil case opening statement has periodically been at issue on appeal, but discussion, of late, has been generally sparse. The most recent authoritative treatment of the opening statement has pertained to criminal trials, and comparisons are apt, as is elaboration on the civil case opening, considering that two misconceptions seem to have grown up. One is mentioned by Professor David Siegel (Siegel, N.Y.Prac. § 395, at 516) who, speaking of civil case openings, states that "[c]ontrary to popular misconception, a party is not rigidly bound by his opening[s]". A related misconception, directly involved in this appeal, is the belief that if an opening statement is attacked as deficient, the party facing dismissal may not correct, repair, or expand upon its contents.

In this case the plaintiff, in his complaint, asserted that he was driving his car on Route 6 in the Town of Carmel, in Putnam County, when the defendant negligently crossed over into the plaintiff's lane, causing a collision, as a result of which the plaintiff suffered serious injuries. The defendant put in a general denial, and, upon the defendant's motion for summary judgment, the court sustained the complaint, concluding that there were issues of fact requiring a trial. At the trial, after the defendant assailed the plaintiff's opening statement as inadequate, the plaintiff sought to expand upon it, but the court denied the plaintiff the opportunity to do so, stating that there is no provision in the law to amend an opening statement following a motion to dismiss.

I

Unlike the criminal law's statutory provisions which place a duty on the prosecutor to open to the jury (CPL 260.30[3], the CPLR carries no such statutory requirement on anyone's part. The only CPLR provision governing opening statements is Rule 4016, which gives the parties the right to make an opening. ¹

Not surprisingly, therefore, a good deal of the legal writing relating to the opening statement is found in treatises on trial tactics and strategies (see, e.g., Decof, Art of Advocacy, Opening Statement [Bender 1981; 1989 supp.]; Givens, Advocacy § 17.01, at 298; 75 Am.Jur.2d, Trial, §§ 202-210; Trial Handbook for New York Lawyers § 6:1, et seq. [2d ed.]; 1 Schweitzer, Cyclopedia of Trial Practice, § 172, et seq. [2d ed.]; J. Kelner and R.S. Kelner, Opening Statements: Trends and Changes, N.Y.L.J. Feb. 14, 1990, at 3, col. 1; Busch, Law and Tactics in Jury Trials, ch. 12, § 221, at 318-333 [1949]; 2 Averbach, Handling Accident Cases, ch. 23, § 231, et seq. [Revised ed. 1973].

The right to make an opening statement is guarded with sufficient zeal that a protested denial of that right is error (Lohmiller v. Lohmiller, 140 A.D.2d 497, 528 N.Y.S.2d 586) and may be a basis for ordering a new trial (Conselyea v. Swift, 103 N.Y. 604, 9 N.E. 489).

Consequently, there is an established body of civil case law dealing with who may seize the right to open, which is, of course, related to who must carry the burden of proof, or, as it has been called, the "affirmative of the issue" (Elwell v. Chamberlin, 31 N.Y. 611, 612; Millerd v. Thorn, 56 N.Y. 402). This is usually determined by the trial court, with reference to the pleadings (Lake Ont. Nat. Bank v. Judson, 122 N.Y. 278, 283, 25 N.E. 367), so that the plaintiff will normally, but not necessarily, hold the right (4 Weinstein-Korn-Miller, N.Y.Civ.Prac. p 4016.05, et seq.; Heilbronn v. Herzog, 165 N.Y. 98, 58 N.E. 759).

II

There is no CPLR provision for the dismissal of a complaint based on the plaintiff's opening statement. ² CPLR 4401, however, contemplates judgment for a party on the strength of "admissions" which, at least theoretically, includes dismissal of a complaint upon the basis of a plaintiff's opening statement (see, 1958 Report of Temporary Comm. on Courts, 2d Preliminary Report of Advisory Comm. on Prac. and Procedure, at 306; 8 Carmody-Wait 2d, N.Y.Prac. § 59:13, n. 1). If, however, CPLR 4401 is to be relied upon, the admissions must be so self-defeating as to irreparably preclude all possibility of judgment (Hoffman House, New York v. Foote, 172 N.Y. 348, 65 N.E. 169; Siegel, N.Y.Prac. § 402).

Moreover, as has been pointed out, a party is not so rigidly bound by an opening that every slip or omission, however reparable or unguarded, is ipso facto fatal (Stines v. Hertz Corp., 45 A.D.2d 751, 356 N.Y.S.2d 649; Goodman v. Brooklyn Hebrew Orphan Asylum, 178 App.Div. 682, 165 N.Y.S. 949). ³

The test for dismissing a complaint on the opening statement has been formulated with slight variation, but the analysis has been essentially the same since it was articulated over a century ago by the United States Supreme Court in Oscanyan v. Arms Co., 103 U.S. 261, 26 L.Ed. 539, with similar expressions by Judge Rapallo in Clews v. Bank of N.Y. Nat. Banking Assn., 105 N.Y. 398, 11 N.E. 814, and Judge O'Brien in Hoffman House, New York v. Foote, 172 N.Y. 348, 65 N.E. 169, supra. Although there were earlier, consonant points of view (see, e.g., Sheridan v. Jackson, 72 N.Y. 170), Clews and Hoffman House mark the development of a line of authority in New York, by which the prospect of a dismissal on opening exists only when, from all available indications, the case is doomed to defeat. These cases, and their progeny, tell us that the trial court has the power to dismiss upon the opening, but that the power should be exercised "with great caution" (Mortimer v. East Side Savings Bank, 251 App.Div. 97, 98, 295 N.Y.S. 695).

Thus, the courts have described the "dangers" of dismissal on opening (Malcolm v. Thomas, 207 App.Div. 230, 231, 201 N.Y.S. 849, aff'd, 238 N.Y. 577, 144 N.E. 899), with admonitions that the practice is "unsafe" (Gilbert v. Rothschild, 280 N.Y. 66, 70, 19 N.E.2d 785), "disfavored" (Davidson v. Hillcrest Gen. Hosp., 40 A.D.2d 693, 336 N.Y.S.2d 296; Kreuger v. Kreuger, 78 A.D.2d 692, 432 N.Y.S.2d 518; Patterson v. Serota, 135 A.D.2d 521, 521 N.Y.S.2d 750), and "not to be encouraged" (Brush v. Lindsay, 210 App.Div. 361, 362, 206 N.Y.S. 304; see also, Bench Book for Trial Judges, N.Y.Prac.Lib., § 26, at E-10, 11 [Lawyer's Co-op. 1989]; Wright and Miller, 9 Federal Practice & Procedure, § 2533, at 584, n. 94; 1 Mottla, New York Evidence, § 551, at 493 [2d ed. 1966]. In this background, a number of criteria have been developed over the years.

In entertaining a motion to dismiss following the opening statement, the court, in exploring the viability of the case, should consult the pleadings, including, of course, the complaint (Backman v. Rodgers, 153 App.Div. 299, 301, 138 N.Y.S. 29), and the bill of particulars (Majeski v. Accurate Constr. Co., 13 A.D.2d 986, 216 N.Y.S.2d 724; Bignami v. Caristo Constr. Corp., 37 A.D.2d 851, 326 N.Y.S.2d 129; Morgan v. Town of North Hempstead, 43 A.D.2d 591, 349 N.Y.S.2d 767; O'Leary v. American Airlines, 100 A.D.2d 959, 475 N.Y.S.2d 285) to aid in the determination of whether there is going to be enough to warrant the eventual submission of the case to the jury.

In making that evaluation, the court must assume that every material fact is to be resolved in favor of the plaintiff ⁴ (Gilbert v. Rothschild, 280 N.Y. 66, 19 N.E.2d 785, supra, at 70, 19 N.E.2d 785; French v. Central New York Power Corp., 275 App.Div. 238, 89 N.Y.S.2d 543; Runkel v. City of New York, 282 App.Div. 173, 179, 123 N.Y.S.2d 485), affording every inference in support of the complaint (Oakeshott v. Smith, 104 App.Div. 384, 385, 93 N.Y.S. 659, aff'd, 185 N.Y. 583, 78 N.E. 1108) which, for these purposes, must be accepted as true (Spallholz v. Sheldon, 148 App.Div. 573, 132 N.Y.S. 560), or, at least provable (Backman v. Rodgers, supra; Loeb v. Goldsmith, 176 App.Div. 747, 163 N.Y.S. 1022). Having done so, the court should not dismiss unless there is "no doubt" that the plaintiff cannot recover (Wiren v. Long Island R.R. Co., 222 App.Div. 812, 226 N.Y.S. 103; Schaefer v. Karl, 43 A.D.2d 747, 350 N.Y.S.2d 728). Dismissal is therefore unauthorized if there is any view under which the plaintiff may succeed (Diglio v. Rosoff Subway Constr. Co., 242 App.Div. 643, 272 N.Y.S. 137; Black v. Judelsohn, 251 App.Div. 559, 296 N.Y.S. 860), or any theory by which it may prevail ( Painter v. Fletcher, 182 App.Div. 616, 169 N.Y.S. 914; Penn Cent. Transp. Co. v. Singer Warehouse & Trucking Corp., 86 A.D.2d 826, 447 N.Y.S.2d 265). Once this test is passed, in that the complaint is deemed to have stated a cause of action, the court must then examine whether the valid complaint is conclusively defeated either by a clearly and factually admitted defense, or by an admission or concession ( see, Alexander v. Seligman, 131 A.D.2d 528, 516 N.Y.S.2d 260) so "ruinous" to the plaintiff's case that dismissal is warranted ( Darton v. Interborough Rapid Transit Co., 125 App.Div. 836, 838, 110 N.Y.S. 171). These inquiries constitute the so-called three prong test that courts have...