Dismissal on the Openings is Rarely a Good Idea

Fudge v North Shore-Long Is. Jewish Health Servs. Plainview & Manhasset Hosps.,

117 A.D.3d 783, 986 N.Y.S.2d 490 [2d Dept., 2014]

Dismissal of a cause of action is only rarely warranted on opening statements alone. Here, in a medical malpractice wrongful death case, the court went so far as to dismiss a case during the plaintiff’s opening, on its own motion. Unsurprisingly, the Appellate Division reversed, and sent the matter back for a new trial, before a different Justice.

The court repeated its observation that dismissal after the plaintiff’s opening statement can be sustained only where at least one of three criteria are met:

“(1) that the complaint does not state a cause of action,
“(2) that a cause of action that is otherwise stated is conclusively defeated by something interposed by way of a defense and clearly admitted as a fact, or
“(3) that the counsel for the plaintiff, in his or her opening statement, by some admission or statement of fact, so completely compromised his or her case that the court was justified in awarding judgment as a matter of law to one or more defendants.”
117 AD3d @ 784, quoting Beshay v Eberhart L.P. #1

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