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Nicolli v. City of New York

25 A.D.2d 521 Court N.Y. App. Div. Decision date 1966-02-24 English

Judges Concur — Botein, P. J., McNally, Stevens and Bastow, JJ.

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p. 521
Peter D. Nicolli, as Administrator of the Estate of James Nicolli, Deceased, Appellant, v. City of New York et al., Respondents.

Judgment unanimously reversed on the law and on the facts and new trial granted, with $50 costs to appellant to abide the event. The complaint was improperly dismissed at the close of plaintiff’s case “ for lack of proof sufficient in the law.” Such proof, inconclusive as it may have been, was adequate to survive defendants’ motion that they were entitled to judgment as a matter of law (CBLR 4401). (Cf. McCarthy v. City of New York, 96 N. Y. S. 2d 910 , affd. 273 App. Div. 945 .)

Concur — Botein, P. J., McNally, Stevens and Bastow, JJ.