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IT IS REVERSIBLE ERROR TO ENTERTAIN A MOTION FOR A DIRECTED VERDICT BEFORE THE OPPONENT HAS PRESENTED EVIDENCE AND CLOSED HIS OR HER CASE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the motion for a directed verdict should not have been granted because defendant had not yet presented any evidence:

“[I]t is reversible error to grant a motion for a directed verdict prior to the close of the party’s case against whom a directed verdict is sought” … . “By its express language, [CPLR 4401] authorizes the grant of a motion for a directed verdict only if the opponent of the motion has presented evidence and closes his or her case. The requirement that each party await the conclusion of the other’s case before moving for judgment [under CPLR 4401] is designed to afford all of them a day in court . . . Accordingly, the timing of a motion prescribed by CPLR 4401 must be strictly enforced and the grant of a dismissal [pursuant to CPLR 4401] prior to the close of the opposing party’s case will be reversed as premature, even if the ultimate success of the opposing party in the action is improbable” … . Here, it is undisputed that plaintiff’s motion was granted before defendant had an opportunity to present any evidence. Thus, it was error for the court to entertain plaintiff’s motion … . Veley v Manchester, 2021 NY Slip Op 00760, Fourth Dept 2-5-21

 

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