Schultz V. High-Tech Const. & Mgt. Serv. Inc.

124 A.D.3d 754 (2d Dept. 2015) January 21, 2015

Plaintiff was injured when he fell from a ladder. Prior to the close of the plaintiff’s case-in-chief, the court granted defendants’ motion pursuant to CPLR § 4401 for a judgment during trial. Plaintiff appealed, and the Second Department held that the lower court should not have entertained the defendants’ motion until the close of theplaintiff’s case. Further, the court found that the fact that the plaintiff argued that the defendant created a dangerous condition by placing a ladder in a precarious position did not warrant premature consideration of the defendants’ motion. The judgment of the trial court was reversed, and the case was reinstated and remitted for a new trial.

Practice Note: A motion to dismiss pursuant to CPLR § 4401 should properly be made after the opposing party has had the opportunity to complete their case-in-chief.

Topics: Procedural Issues; Elevation-Related Hazard