| Cromedy v City of New York |
| 2019 NY Slip Op 07527 |
| Decided on October 22, 2019 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on October 22, 2019
Acosta, P.J., Richter, Mazzarelli, Webber, Kern, JJ.
10139 309450/12
v
The City of New York, et al., Defendants-Respondents.
Sivin & Miller, LLP, New York (Glenn D. Miller of counsel), for appellant.
Georgia M. Pestana, Acting Corporation Counsel (Ingrid R. Gustafson of counsel), for respondents.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered on or about April 15, 2019, which denied plaintiff's motion pursuant to CPLR 4404 to set aside a directed verdict in favor of defendants and for a new trial on his denial of a fair trial claim under 42 USC § 1983, unanimously reversed, on the law, without costs, and the motion granted.
The denial of a fair trial claim is a stand alone cause of action (see e.g. Garnett v Undercover Officer C0039, 838 F3d 265, 278-279 [2d Cir 2016]), which should not have been dismissed prior to the conclusion of plaintiff's case in chief. CPLR 4401 permits a party to move for a directed verdict "after the close of the evidence presented by an opposing party with respect to such cause of action or issue." "[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" (Griffin v Clinton Green S., LLC, 98 AD3d 41, 44 [1st Dept 2012]), even if the ultimate success of a plaintiff's cause of action is unlikely (see 11 Essex St. Corp. v Tower Ins. Co. of N.Y., 153 AD3d 1190, 1195 [1st Dept 2017]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 22, 2019
CLERK