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A MOTION FOR JUDGMENT AS A MATTER OF LAW MUST BE DENIED IF IT IS BROUGHT BEFORE THE CLOSE OF THE OPPOSING PARTY’S CASE, EVEN IF THE MOTION HAS MERIT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s motion pursuant to CPLR 4401 for judgment as a matter of law in this foreclosure action was premature because it was made before the close of plaintiff’s case:

During the trial, the defendant objected to the admission of a copy of the underlying note. The Supreme Court declined to admit the note into evidence, and the defendant moved pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against it, arguing that the plaintiff was unable to establish a prima facie case. … [T]he court granted the defendant’s motion, dismissed the complaint insofar as asserted against him, and directed the County Clerk to cancel and discharge the notice of pendency. …

“A motion for judgment as a matter of law is to be made at the close of an opposing party’s case or at any time on the basis of admissions (see CPLR 4401), and the grant of such a motion prior to the close of the opposing party’s case generally will be reversed as premature even if the ultimate success of the opposing party in the action is improbable” … . Here, the defendant’s motion for judgment as a matter of law dismissing the complaint insofar as asserted against him was made before the close of the plaintiff’s case, and was not based upon an admission by the plaintiff. Accordingly, the defendant’s motion should have been denied as premature … . Bank of N.Y. Mellon v Waheed, 2023 NY Slip Op 02774, Second Dept 5-24-23

Practice Point: A motion for judgment as a matter of law pursuant to CPLR 4401 must be denied as premature if it is brought before the opposing party closes its case, even in the motion has merit.

 

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