Opinion
September 24, 1990
Appeal from the Supreme Court, Westchester County (Marbach, J.).
Ordered that the judgment is reversed, on the law, and a new trial is granted, with costs to abide the event.
The Supreme Court dismissed the plaintiff's action, grounded on false imprisonment, after the plaintiff's attorney had presented two witnesses (who were, respectively, an employee of the respondent and an employee of the respondent's codefendant J.C. Penney Company, Inc.) and before the plaintiff's counsel had completed his proof, thereby preventing the plaintiff's counsel, inter alia, from reading from the deposition transcript of an adverse party (see, CPLR 3117). Although the Supreme Court made note of its view of the merits of the case, it appears that the dismissal was premised primarily upon the plaintiff's counsel's failure to produce the plaintiff, whose absence had evidently already delayed proceedings.
We have often noted that it is inappropriate to dismiss a case for failure of proof before the plaintiff rests and in the absence of a properly grounded motion by the defendant for that relief (see, e.g., Goldstein v. Post Center, 122 A.D.2d 196; Balogh v. H.R.B. Caterers, 88 A.D.2d 136). The Supreme Court's dismissal here is unauthorized (see, Balogh v. H.R.B. Caterers, supra; cf., Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 573). In any event, it is not clear from the evidence presented that the plaintiff's warrantless arrest was justified by "reasonable cause" (see, CPL 70.10, 140. 10 Crim. Proc.), a defense which the defendants did not formally plead (cf., Broughton v. State of New York, 37 N.Y.2d 451; Woodson v. New York City Hous. Auth., 10 N.Y.2d 30). Rather, the record before us demonstrates the existence of a factual issue as to whether police justifiably relied on an accusation that a crime had been committed when they handcuffed the plaintiff and removed him to a police station (cf., Smith v County of Nassau, 34 N.Y.2d 18). Since reasonable people could differ as to whether the fabricated accusation against the plaintiff was on its face credible, the dismissal of the complaint for failure of proof would have been improper, even if it had been effectuated pursuant to proper procedures (see, e.g., Smith v. County of Nassau, supra; Goldstein v. Post Center, supra). Brown, J.P., Kooper, Harwood and Balletta, JJ., concur.