DiPasquale v. Baker-Roos, Inc.

Order reversed on the law, with costs, complaint reinstated and new trial granted. Memorandum: Supreme Court erred when it dismissed plaintiffs’ causes of action and complaint in its entirety as against defendants, Baker-Roos, Inc. and Faultless Division of Bliss and Laughlin Industries after opening statements to the jury. Dismissal of a complaint on the plaintiffs’ opening statement is strongly disfavored (Seminara v Iadanza, 131 AD2d 457, 459). No complaint may be dismissed upon counsel’s opening unless the facts as alleged and presented by counsel preclude any possibility of plaintiffs’ recovery (Jurewicz v Lucarelli, 11 AD2d 751). That situation is not present in the instant record. In our view, the complaint and bills of particulars adequately apprised defendants of plaintiffs’ claims of negligence; thus, plaintiffs’ causes of action should be reinstated against all defendants and a new trial granted. All concur, except Boomer, J., who dissents and votes to affirm, in the following memorandum.