Wilson v. Schindler Haughton Elevator Corp.
| Decision Date | 24 March 1986 |
| Citation | 500 N.Y.S.2d 310,118 A.D.2d 777 |
| Parties | Elaine WILSON, et al., Appellants, v. SCHINDLER HAUGHTON ELEVATOR CORP., Third-Party Plaintiff-Respondent; Lydia E. Hall Hospital, Third-Party Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
David Scheinfeld, New York City (Henry I. Weil, of counsel), for appellants.
Darby & Darby, P.C., New York City (Lawrence A. Hoffman and Ethan Horwitz, of counsel), for third-party plaintiff-respondent.
Baron & Vesel, P.C., Forest Hills (Michael C. Modansky, of counsel), for third-party defendant-respondent.
Before MANGANO, J.P., and BROWN, RUBIN and LAWRENCE, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) a purported order of the Supreme Court, Queens County (Hyman, J.), dated February 8, 1984, which states that the plaintiffs' complaint was dismissed after the completion of his trial counsel's opening statement, and (2) a judgment of the same court, entered March 28, 1984, which, upon the motion of the defendant third-party plaintiff at the completion of the plaintiffs' opening statement to the jury, dismissed their complaint.
Appeal from the purported order dismissed. The order is actually a clerk's extract of the trial minutes, which is not an appealable paper (see, CPLR 5512[a]; Davidson v. Ha Il-Bo, App.Div., 499 N.Y.S.2d 105); in any event, the judgment supersedes the purported order (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647), and the issues raised on appeal from the purported order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501[a][1] ).
Judgment reversed, on the law, and a new trial granted.
The plaintiffs are awarded one bill of costs, payable by the defendant third-party plaintiff.
The Court of Appeals has stated that a dismissal based upon the plaintiffs' opening statement cannot be sustained unless it is established that "the counsel stating the case to the jury deliberately and intentionally state[d] or admit[ted] some fact that, in any view of the case, [was] fatal to the action" (Hoffman House, New York v. Foote, 172 N.Y. 348, 351, 65 N.E. 169).
In the instant case, the plaintiffs' complaint set forth a valid cause of action based upon the alleged negligence of the defendant. Nothing in the opening statement by the plaintiffs' counsel precluded them as a matter of law from establishing their...
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