You are here: / / THE FAILURE TO RULE ON A MOTION FOR A TRIAL ORDER OF DISMISSAL IS NOT A...
, ,

THE FAILURE TO RULE ON A MOTION FOR A TRIAL ORDER OF DISMISSAL IS NOT A DENIAL OF THE MOTION; AN APPELLATE COURT MUST REMIT FOR A RULING BY THE TRIAL COURT (FOURTH DEPT).

The Fourth Department, remitting the matter for a ruling, noted that a judge’s failure to rule on a trial order of dismissal motion does not constitute a denial of the motion. Therefore an appellate court cannot rule on the evidentiary issue raised in the motion and must send the matter back for a ruling:

The failure of a trial court to rule on a motion for a trial order of dismissal cannot be deemed a denial of that motion, and thus we must hold the case, reserve decision, and remit the matter to County Court for a ruling on defendant’s motion … . People v Kohmescher, 2024 NY Slip Op 03287, Fourth Dept 6-14-24

Practice Point: Because the failure to rule on a motion for a trial order of dismissal is not a denial of the motion an appellate court cannot address the issue and must remit for a ruling by the trial court.

 

You might also like
Right to Counsel.
THE OFFICER’S TESTIMONY HE COULD NOT SEE INSIDE THE CAR FROM A DISTANCE OF 10 TO 15 FEET PROVIDED PROBABLE CAUSE TO STOP THE CAR FOR A “TINTED WINDOWS” VIOLATION; THE DISSENT ARGUED IT WAS DARK AT THE TIME OF THE STOP AND THE OFFICER DID NOT LINK HIS INABILITY TO SEE INSIDE THE CAR TO THE TINTED WINDOWS AS OPPOSED TO THE AMBIENT DARKNESS (FOURTH DEPT). ​
MANSLAUGHTER FIRST DEGREE IS NOT AN “ARMED FELONY” WITHIN THE MEANING OF CRIMINAL PROCEDURE LAW 720.10; COUNTY COURT WAS REQUIRED TO DETERMINE WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS; MATTER REMITTED (FOURTH DEPT).
Failure to Bring Timely Article 78 Proceedings to Contest Town Planning Board Decisions Approving Construction of a Condominium Cannot Be Circumvented by Bringing an Action for a Declaratory Judgment
THERE IS NO CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION IN NEW YORK; PLAINTIFF’S DECEDENT, A CHILD, WAS MURDERED BY MOTHER’S BOYFRIEND: THE SUIT ALLEGING THE COUNTY DID NOT ADEQUATELY INVESTIGATE PRIOR REPORTS OF CHILD ABUSE SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).
CROSS EXAMINATION OF PLAINTIFF ABOUT HIS CRIMINAL HISTORY PROPERLY PRECLUDED IN THIS MEDICAL MALPRACTICE ACTION, EXPERT OPINION PROPERLY RELIED UPON HEARSAY STATEMENTS BY PLAINTIFF’S TREATING PHYSICIAN (FOURTH DEPT).
Tenant’s Filing for Bankruptcy Precluded County from Proceeding with Efforts to Collect on a Property Tax Lien
SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, SEARCHED THE RECORD AND ISSUED A DECLARATORY JUDGMENT ALLOWING PLANTIFFS TO PAVE AN EASEMENT (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE JURY REQUESTED A READBACK OF BOTH THE DIRECT AND THE CROSS; THE JUDGE ONLY... OVER A TWO-JUSTICE DISSENT, THE MATTER WAS SENT BACK FOR A RULING ON WHETHER...