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Brignoli v. Balch, Hardy Scheinman, Inc.

Appellate Division of the Supreme Court of New York, First Department
Dec 17, 1991
178 A.D.2d 290 (N.Y. App. Div. 1991)

Opinion

December 17, 1991

Appeal from the Supreme Court, New York County (Herman Cahn, J.).


In this action for breach of contract and violation of trade secrets, the IAS court erroneously charged the jury in a way that left a clear impression that the burden of proof was on the plaintiff that he, and not a successor corporation, was the real party in interest. The defendant bears the burden of proof on an affirmative defense (see, e.g., Kramer v City of New York, 173 A.D.2d 155, lv denied 78 N.Y.2d 857), including one that asserts that the plaintiff is not the real party in interest (Cleary v Dykeman, 162 App. Div. 897). The erroneous charge on the burden of proof warrants a new trial (see, Wilson v Nationwide Mut. Ins. Co., 168 A.D.2d 912, lv dismissed 77 N.Y.2d 940).

In view of the foregoing we need not reach plaintiff's other arguments.

Concur — Carro, J.P., Rosenberger, Ellerin, Kupferman and Ross, JJ.


Summaries of

Brignoli v. Balch, Hardy Scheinman, Inc.

Appellate Division of the Supreme Court of New York, First Department
Dec 17, 1991
178 A.D.2d 290 (N.Y. App. Div. 1991)
Case details for

Brignoli v. Balch, Hardy Scheinman, Inc.

Case Details

Full title:RICHARD J. BRIGNOLI, Appellant, v. BALCH, HARDY SCHEINMAN, INC., Respondent

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 17, 1991

Citations

178 A.D.2d 290 (N.Y. App. Div. 1991)
577 N.Y.S.2d 375

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