Wessel v. Krop
Decision Date | 24 June 1968 |
Parties | Maurice H. WESSEL and Ruth M. Wessel, Appellants, v. Lou KROP, Respondent. |
Court | New York Supreme Court — Appellate Division |
Johnson & Bayger, Rudolph U. Johnson, Buffalo, for appellants.
Brown, Kelly, Turner, Hassett & Leach, Wm. D. Hassett, Buffalo, for respondent.
Before BASTOW, P.J., and DEL VECCHIO, MARSH, WITMER and HENRY, JJ.
In granting defendant's motion at the close of the evidence for judgment in his favor the trial court made it clear that his determination was predicated upon a consideration of the weight of the testimony of the medical expert called by plaintiffs. However, weight of the evidence is not a valid basis for withdrawing the case from a jury upon a motion made pursuant to CPLR 4401, which encompasses motions to dismiss the complaint for a non-suit, motions for a directed verdict and motions for judgment based on admissions or opening statements. (4 Weinstein-Korn-Miller, New York Civil Practice, 4401.01) A motion for judgment at the close of the entire case is substantially equivalent to a motion for a directed verdict made at that point. (Davis v. Caristo Constr. Corp., 19 A.D.2d 518, 240 N.Y.S.2d 309, quoted with approval in Lakin v. MVAIC, 23 A.D.2d 488, 255 N.Y.S.2d 678.) (Wearever Upholstery & Furniture Corp. v. Home Ins. Co., 286 App.Div. 93, 95, 141 N.Y.S.2d 107, 109.)
In the present case plaintiffs presented proof from which a jury might find that the injuries in question resulted from defendant's furnishing plaintiff Ruth Wessel with a contact lens which was defective...
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