McGhee v. New York City Housing Authority

In an action to recover damages for wrongful death, the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Huttner, J.), entered May 2, 1996, which, upon the granting of the motion of the defendant New York City Housing Authority to dismiss the compliant, made before the close of the plaintiffs’ evidence, dismissed the complaint insofar as asserted against that defendant. Ordered that the judgment is reversed, on the law, with costs, the motion to dismiss the complaint is denied, the complaint is reinstated insofar as asserted against the New York City Housing Authority, and a new trial against that defendant is granted. In the case before us, the trial court acted inappropriately in dismissing the action before the plaintiffs rested. “[T]he dismissal of the complaint before plaintiff had concluded [her] case was unduly precipitate” (Budner v Giunta, 16 AD2d 780, 781; see also, Canteen v City of White Plains, 165 AD2d 856; Goldstein v Post Ctr., 122 AD2d 196; Cass v Broome County Co-Op. Ins. Co., 94 AD2d 822; Paige v City of New York, 79 AD2d 573; Cetta v City of New York, 46 AD2d 762). We therefore reverse and grant the plaintiffs a new trial. Rosenblatt, J. P., Copertino, Krausman and Goldstein, JJ., concur.