Order of Trial - Motion to Dismiss After Opening Statement
Dismissal of a complaint at end of plaintiff's opening statement is permitted in cases where the complaint does not state cause of action, the cause of action is conclusively defeated by an admitted defense, or counsel, by admissions or statements of fact, has subverted plaintiff's cause of action.[1]
Formal judicial admissions take the place of evidence and are concessions, for the purposes of the litigation, of the truth of a fact alleged by an adversary. [2] Informal judicial admissions are facts incidentally admitted during the trial. These are not conclusive, being merely evidence of the fact or facts admitted. [3]
An unequivocal factual assertion made by counsel during opening statements can constitute a judicial admission. [4] In order to constitute a judicial admission, the statement must be one of fact.[5] Counsel's argument or opinion cannot constitute a judicial admission.[6] The statement must be made with sufficient formality and conclusiveness, that is, it must be deliberate, clear, and unequivocal. [7] Where counsel's statement is not one of fact, nor made with sufficient formality and conclusiveness, and is merely his opinion as to what he believed the evidence had shown, it is not an admission.[8]
There is no CPLR provision for the dismissal of a complaint based on the plaintiff's opening statement. CPLR 4401, however, contemplates judgment for a party on the strength of “admissions” which, at least theoretically, includes dismissal of a complaint upon the basis of a plaintiff's opening statement. If CPLR 4401 is to be relied upon, the admissions must be so self-defeating as to irreparably preclude all possibility of judgment.[9]
In entertaining a motion to dismiss following the opening statement, the court, in exploring the viability of the case, should consult the pleadings, including, the complaint and the bill of particulars to aid in the determination of whether there is going to be enough to warrant the eventual submission of the case to the jury. In making that evaluation, the court must assume that every material fact is to be resolved in favor of the plaintiff, affording every inference in support of the complaint which, for these purposes, must be accepted as true, or, at least provable. The court should not dismiss unless there is “no doubt” that the plaintiff cannot recover. Dismissal is unauthorized if there is any view under which the plaintiff may succeed or any theory by which it may prevail. Once this test is passed, in that the complaint is deemed to have stated a cause of action, the court must then examine whether the valid complaint is conclusively defeated either by a clearly and factually admitted defense, or by an admission or concession so ruinous to the plaintiff's case that dismissal is warranted. These inquiries constitute the three-prong test that courts have come to apply. This is not to say that a trial court should be so indulgent as to sustain a case which, from all indications, has no legal basis. If nonetheless, on the opening, it becomes obvious that the suit cannot be maintained because it lacks a legal basis or, when taken in its strongest light, cannot succeed, the court has the power to dismiss. However, dismissal has not been upheld where the plaintiff's attorney was denied the request to make an offer of proof in support of the opening statement after it was challenged as inadequate.[10]
[1] Henderson v Henderson, 172 AD2d 956, 568 NYS2d 664 (3d Dept 1991); McLoughlin v Holy Cross High School, 135 AD2d 513, 521 NYS2d 744 (2d Dept 1987).
[2] See Prince, Richardson on Evidence § 8-215 [Farrell 11th Ed].
[3] See Prince, Richardson on Evidence § 8-219 [Farrell 11th Ed]; Wheeler v Citizens Telecom. Co. of New York, Inc., 18 AD3d 1002, 1005 [3d Dept 2005]
[4] Prince, Richardson on Evidence § 8-215; cf. Rahman v. Smith, 40 AD3d 613, 614-615; Diaz v. Bryant, 29 AD3d 854; Wheeler v. Citizens Telecom. Co. of N.Y., Inc., 18 AD3d 1002; De Vito v. Katsch, 157 A.D.2d 413).
In Kosterek v Kosterek, 107 A.D.3d 762, 968 N.Y.S.2d 97 (2d Dept., 2013) the Appellate Division found that plaintiff established, prima facie, her entitlement to equitable distribution of a certain parcel of real property where defendant admitted in his Statement of Proposed Disposition that he acquired some ownership interest in the property during the marriage and confirmed the timing of his acquisition in opening statements, during which defense counsel asserted that, during the marriage, the defendant purchased the property, though partially with money received from another source. This unequivocal, factual assertion made during opening statements constituted a judicial admission. It was thereby established that at least a portion of the defendant's interest in the property was presumptively marital property and, thus, the burden shifted to the defendant to rebut that presumption.
[5] See 5 Bender's NY Evidence § 16.06 [1]; Prince, Richardson on Evidence §§ 8-215, 8-219 [Farrell 11th ed])
[6] See Wheeler v Citizens Telecom. Co. of N.Y., Inc., 18 AD3d 1002, 1005 [2005]
[7] See State of New York ex rel. H. v P., 90 AD2d 434, 438 n 4 [1982]; see also Matter of Corland Corp., 967 F2d 1069, 1074 [1992]; 29A Am Jur 2d, Evidence § 770).
[8] Rahman v Smith, 40 AD3d 613, 614-15 [2d Dept 2007]
[9] Hoffman House v Foote, 172 NY 348; Siegel, NY Prac § 402.
[10] De Vito v Katsch, 157 AD2d 413, 415-19 [2d Dept 1990]
Dismissal of a complaint at end of plaintiff's opening statement is permitted in cases where the complaint does not state cause of action, the cause of action is conclusively defeated by an admitted defense, or counsel, by admissions or statements of fact, has subverted plaintiff's cause of action.[1]
Formal judicial admissions take the place of evidence and are concessions, for the purposes of the litigation, of the truth of a fact alleged by an adversary. [2] Informal judicial admissions are facts incidentally admitted during the trial. These are not conclusive, being merely evidence of the fact or facts admitted. [3]
An unequivocal factual assertion made by counsel during opening statements can constitute a judicial admission. [4] In order to constitute a judicial admission, the statement must be one of fact.[5] Counsel's argument or opinion cannot constitute a judicial admission.[6] The statement must be made with sufficient formality and conclusiveness, that is, it must be deliberate, clear, and unequivocal. [7] Where counsel's statement is not one of fact, nor made with sufficient formality and conclusiveness, and is merely his opinion as to what he believed the evidence had shown, it is not an admission.[8]
There is no CPLR provision for the dismissal of a complaint based on the plaintiff's opening statement. CPLR 4401, however, contemplates judgment for a party on the strength of “admissions” which, at least theoretically, includes dismissal of a complaint upon the basis of a plaintiff's opening statement. If CPLR 4401 is to be relied upon, the admissions must be so self-defeating as to irreparably preclude all possibility of judgment.[9]
In entertaining a motion to dismiss following the opening statement, the court, in exploring the viability of the case, should consult the pleadings, including, the complaint and the bill of particulars to aid in the determination of whether there is going to be enough to warrant the eventual submission of the case to the jury. In making that evaluation, the court must assume that every material fact is to be resolved in favor of the plaintiff, affording every inference in support of the complaint which, for these purposes, must be accepted as true, or, at least provable. The court should not dismiss unless there is “no doubt” that the plaintiff cannot recover. Dismissal is unauthorized if there is any view under which the plaintiff may succeed or any theory by which it may prevail. Once this test is passed, in that the complaint is deemed to have stated a cause of action, the court must then examine whether the valid complaint is conclusively defeated either by a clearly and factually admitted defense, or by an admission or concession so ruinous to the plaintiff's case that dismissal is warranted. These inquiries constitute the three-prong test that courts have come to apply. This is not to say that a trial court should be so indulgent as to sustain a case which, from all indications, has no legal basis. If nonetheless, on the opening, it becomes obvious that the suit cannot be maintained because it lacks a legal basis or, when taken in its strongest light, cannot succeed, the court has the power to dismiss. However, dismissal has not been upheld where the plaintiff's attorney was denied the request to make an offer of proof in support of the opening statement after it was challenged as inadequate.[10]
[1] Henderson v Henderson, 172 AD2d 956, 568 NYS2d 664 (3d Dept 1991); McLoughlin v Holy Cross High School, 135 AD2d 513, 521 NYS2d 744 (2d Dept 1987).
[2] See Prince, Richardson on Evidence § 8-215 [Farrell 11th Ed].
[3] See Prince, Richardson on Evidence § 8-219 [Farrell 11th Ed]; Wheeler v Citizens Telecom. Co. of New York, Inc., 18 AD3d 1002, 1005 [3d Dept 2005]
[4] Prince, Richardson on Evidence § 8-215; cf. Rahman v. Smith, 40 AD3d 613, 614-615; Diaz v. Bryant, 29 AD3d 854; Wheeler v. Citizens Telecom. Co. of N.Y., Inc., 18 AD3d 1002; De Vito v. Katsch, 157 A.D.2d 413).
In Kosterek v Kosterek, 107 A.D.3d 762, 968 N.Y.S.2d 97 (2d Dept., 2013) the Appellate Division found that plaintiff established, prima facie, her entitlement to equitable distribution of a certain parcel of real property where defendant admitted in his Statement of Proposed Disposition that he acquired some ownership interest in the property during the marriage and confirmed the timing of his acquisition in opening statements, during which defense counsel asserted that, during the marriage, the defendant purchased the property, though partially with money received from another source. This unequivocal, factual assertion made during opening statements constituted a judicial admission. It was thereby established that at least a portion of the defendant's interest in the property was presumptively marital property and, thus, the burden shifted to the defendant to rebut that presumption.
[5] See 5 Bender's NY Evidence § 16.06 [1]; Prince, Richardson on Evidence §§ 8-215, 8-219 [Farrell 11th ed])
[6] See Wheeler v Citizens Telecom. Co. of N.Y., Inc., 18 AD3d 1002, 1005 [2005]
[7] See State of New York ex rel. H. v P., 90 AD2d 434, 438 n 4 [1982]; see also Matter of Corland Corp., 967 F2d 1069, 1074 [1992]; 29A Am Jur 2d, Evidence § 770).
[8] Rahman v Smith, 40 AD3d 613, 614-15 [2d Dept 2007]
[9] Hoffman House v Foote, 172 NY 348; Siegel, NY Prac § 402.
[10] De Vito v Katsch, 157 AD2d 413, 415-19 [2d Dept 1990]
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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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