(concurring in part and dissenting in part and voting to reverse the judgment and dismiss the complaint in the following memorandum). While I concur with the substance of the majority’s opinion and its reversal of the judgment, I disagree with the majority’s decision to order a new trial. In my view, and under the circumstances of this case, plaintiffs complaint should be dismissed.
It is evident from the record that before the court ruled on its motion for a directed verdict, plaintiff had no intention of presenting a case at trial. Plaintiff made clear that, based on a prior decision denying its motion for summary judgment, plaintiff had established a prima facie case and, thus, there was no need to go forward. Indeed, plaintiffs counsel admitted that he had no witnesses to produce and rested without presenting any evidence. In these circumstances, I find no reason to afford plaintiff a second opportunity for a new trial, especially when he clearly chose to forgo offering any proof below. As defendant notes on appeal, since plaintiff failed to meet its burden of establishing a prima face case at trial, plaintiff’s complaint should be dismissed (see Tsatsakis v Booth Mem. Med. Ctr., 37 AD3d 591 [2007]).
Pesce, EJ., and Belen, J., concur; Weston Patterson, J., concurs in part and dissents in part in a separate memorandum.