Conduct of Trial - Motion to Dismiss for failure to establish a Prima Facie Case
After the party having the burden of proof on the issues has closed his case and rested the adverse party may move to dismiss for failure to establish a prima facie case.
Any party may move for a judgment as a matter of law after the close of the evidence presented by an opposing party. The grounds for the motion must be specified. The motion does not waive the right to present further evidence even where it is made by all parties.[1]
In determining a motion to dismiss an action for failure to make out a prima facie case, the plaintiff's evidence must be accepted as true and given the benefit of every reasonable inference which can reasonably be drawn from that evidence. The motion should only be granted if there is no rational process by which a fact-finder could find for the plaintiff as against the moving defendant. [2] The question of credibility is irrelevant, and should not be considered.[3] The testimony must be viewed in a light most favorable to the plaintiff, and accepted as true. [4]
The motion should only be granted if there is no rational process by which a fact-finder could find for the plaintiff as against the moving defendant. Such a motion must be denied where facts are in dispute, where different inferences may be drawn from the evidence, or where the credibility of the witnesses is in question.[5]
A motion to dismiss based on admissions is authorized “at any time”. [6]The motion may be granted when counsel “deliberately and intentionally states or admits some fact that, in any view of the case, is fatal to the action”. [7]
After the party having the burden of proof has rested the adverse party has the right to offer evidence. This is subject to the right of the judge to alter the order of proof.[8]
The adverse party meets his adversary's case by either proving that the facts are not as shown by the proponent of the evidence, by impeaching the plaintiff's witnesses or by establishing an affirmative defense.
[1] CPLR 4401 provides that any party may move for judgment with respect to a cause of action or issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presented by an opposing party with respect to such cause of action or issue, or at any time on the basis of admissions. The grounds for the motion must be specified. The motion does not waive the right to trial by jury or to present further evidence even where it is made by all parties.
[2] Wai Foon Chan v Yuk Sim Chan, 193 A.D.2d 575, 576 (2d Dept., 1993)
[3] Janice M. v Terrance J., 96 AD3d 482 [1st Dept 2012]
[4] Wai Foon Chan v Yuk Sim Chan, 193 A.D.2d 575, 576 (2d Dept., 1993); Gonzalez v Gonzalez, 262 A.D.2d 281, 282–83 (2d Dept., 1999); E.S. v. P.D., 6 Misc. 3d 1030(A), 800 N.Y.S.2d 345 (Sup. Ct. 2004) aff'd as modified, 27 A.D.3d 757, 815 N.Y.S.2d 607 (2006) aff'd, 8 N.Y.3d 150, 863 N.E.2d 100 (2007); Matter of Christy v Christy, 113 A.D.3d 848, 979 N.Y.S.2d 623 (2d Dept., 2014); Stephens v. Stephens, 106 A.D.3d 748, 964 N.Y.S.2d 912 (2013); Ramroop v Ramsagar, 74 AD3d 1208, 1209 [2d Dept 2010]; Janice M. v Terrance J., 96 AD3d 482 [1st Dept 2012]
[5] Id.
[6] CPLR 4401
[7] Hoffman House v. Foote, 172 N.Y. 348, 351, 65 N.E. 169 (1902).
[8] Feldsberg v. Nitschke, 49 N.Y.2d 636, 404 N.E.2d 1293, 427 N.Y.S.2d 751(1980).
After the party having the burden of proof on the issues has closed his case and rested the adverse party may move to dismiss for failure to establish a prima facie case.
Any party may move for a judgment as a matter of law after the close of the evidence presented by an opposing party. The grounds for the motion must be specified. The motion does not waive the right to present further evidence even where it is made by all parties.[1]
In determining a motion to dismiss an action for failure to make out a prima facie case, the plaintiff's evidence must be accepted as true and given the benefit of every reasonable inference which can reasonably be drawn from that evidence. The motion should only be granted if there is no rational process by which a fact-finder could find for the plaintiff as against the moving defendant. [2] The question of credibility is irrelevant, and should not be considered.[3] The testimony must be viewed in a light most favorable to the plaintiff, and accepted as true. [4]
The motion should only be granted if there is no rational process by which a fact-finder could find for the plaintiff as against the moving defendant. Such a motion must be denied where facts are in dispute, where different inferences may be drawn from the evidence, or where the credibility of the witnesses is in question.[5]
A motion to dismiss based on admissions is authorized “at any time”. [6]The motion may be granted when counsel “deliberately and intentionally states or admits some fact that, in any view of the case, is fatal to the action”. [7]
After the party having the burden of proof has rested the adverse party has the right to offer evidence. This is subject to the right of the judge to alter the order of proof.[8]
The adverse party meets his adversary's case by either proving that the facts are not as shown by the proponent of the evidence, by impeaching the plaintiff's witnesses or by establishing an affirmative defense.
[1] CPLR 4401 provides that any party may move for judgment with respect to a cause of action or issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presented by an opposing party with respect to such cause of action or issue, or at any time on the basis of admissions. The grounds for the motion must be specified. The motion does not waive the right to trial by jury or to present further evidence even where it is made by all parties.
[2] Wai Foon Chan v Yuk Sim Chan, 193 A.D.2d 575, 576 (2d Dept., 1993)
[3] Janice M. v Terrance J., 96 AD3d 482 [1st Dept 2012]
[4] Wai Foon Chan v Yuk Sim Chan, 193 A.D.2d 575, 576 (2d Dept., 1993); Gonzalez v Gonzalez, 262 A.D.2d 281, 282–83 (2d Dept., 1999); E.S. v. P.D., 6 Misc. 3d 1030(A), 800 N.Y.S.2d 345 (Sup. Ct. 2004) aff'd as modified, 27 A.D.3d 757, 815 N.Y.S.2d 607 (2006) aff'd, 8 N.Y.3d 150, 863 N.E.2d 100 (2007); Matter of Christy v Christy, 113 A.D.3d 848, 979 N.Y.S.2d 623 (2d Dept., 2014); Stephens v. Stephens, 106 A.D.3d 748, 964 N.Y.S.2d 912 (2013); Ramroop v Ramsagar, 74 AD3d 1208, 1209 [2d Dept 2010]; Janice M. v Terrance J., 96 AD3d 482 [1st Dept 2012]
[5] Id.
[6] CPLR 4401
[7] Hoffman House v. Foote, 172 N.Y. 348, 351, 65 N.E. 169 (1902).
[8] Feldsberg v. Nitschke, 49 N.Y.2d 636, 404 N.E.2d 1293, 427 N.Y.S.2d 751(1980).
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
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The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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