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Judgment as a matter of law due to opening statementSeptember 28, 2013

Okunubi v City of New York, 2013 NY Slip Op 05886 (2d Dept. 2013)

This must be the worst nightmare of every practitioner.  I think I would not sleep for a week if this happened to me.

“An application for judgment as a matter of law may be made at the close of an opposing party’s case, or at any time on the basis of admissions (see CPLR 4401). The grant of such an application prior to the close of the opposing party’s case is generally disfavored (see Kamanou v Bert, 94 AD3d 704De Vito v Katsch, 157 AD2d 413, 416-417). However, judgment as a matter of law may be warranted prior to the presentation of any evidence if the plaintiff has, “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” (Beshay v Eberhart L.P. No. 1, 69 AD3d 779, 781; see Ballantyne v City of New York, 19 AD3d 440Schomaker v Pecoraro, 237 AD2d 424, 425-26; see also Hoffman House, N.Y. v Foote, 172 NY 348, 350; Hardy v State of New York, 294 AD2d 400, 401; Fuller v New York City Bd. of Educ., 206 AD2d 452, 453; De Vito v Katsch, 157 AD2d at 416-417). [*2]

Here, prior to the presentation of evidence, the plaintiff’s counsel made certain admissions and statements of fact which demonstrated, as a matter of law, that the police had probable cause to arrest the plaintiff. Probable cause to believe that a person committed a crime is a complete defense to causes of action alleging false arrest and malicious prosecution” 

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“This admission by the plaintiff, through his counsel, “so completely compromised” his position that the police lacked probable cause to arrest him, that the Supreme Court was justified in awarding judgment as a matter of law to the City “

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