Appellate Division of the Supreme Court of New York, 1968

Wessel v. Krop

Appellate Division of the Supreme Court of New York · Decided June 24, 1968

30 A.D.2d 764; 291 N.Y.S.2d 986; 1968 N.Y. App. Div. LEXIS 3688

Cases that cite this one

27 later published cases cite this decision. The 25 that cite it most often are listed here.

DeAngelis v. Protopopescu (Appellate Division of the Supreme Court of New York 2007)
Schmidt v. Turner (Appellate Division of the Supreme Court of New York 2005)
Scarozza v. Tudor Plaza, Inc. (Appellate Division of the Supreme Court of New York 2003)
Guiton v. Gottlieb (Appellate Division of the Supreme Court of New York 1997)
Liberman v. Riverside Memorial Chapel, Inc. (Appellate Division of the Supreme Court of New York 1996)
Curiale v. Peat, Marwick, Mitchell & Co. (Appellate Division of the Supreme Court of New York 1995)
Axelrod v. Rosenbaum (Appellate Division of the Supreme Court of New York 1994)
Schwartz v. Epstein (Appellate Division of the Supreme Court of New York 1993)
Coleman v. City of New York (Appellate Division of the Supreme Court of New York 1992)
Windisch v. Weiman (Appellate Division of the Supreme Court of New York 1990)
Reynolds v. Morford (Appellate Division of the Supreme Court of New York 1986)
Petrovski v. Fornes (Appellate Division of the Supreme Court of New York 1986)
Mooney v. Ovitt (Appellate Division of the Supreme Court of New York 1984)
Gayle v. Neyman (Appellate Division of the Supreme Court of New York 1983)
Lipsius v. White (Appellate Division of the Supreme Court of New York 1983)
Bugge v. Sweet (Appellate Division of the Supreme Court of New York 1982)
Nicholas v. Reason (Appellate Division of the Supreme Court of New York 1981)
Hansen v. Coca-Cola Bottling Co. (Appellate Division of the Supreme Court of New York 1980)
Van Lare v. Crandall (Appellate Division of the Supreme Court of New York 1979)
Shambeau v. County of Saratoga (Appellate Division of the Supreme Court of New York 1979)
D'Amico v. Pennsylvania Millers Mutual Insurance (Appellate Division of the Supreme Court of New York 1979)
Cohen v. Hallmark Cards, Inc. (N.Y. 1978)
Parvi v. City of Kingston (Appellate Division of the Supreme Court of New York 1976)
Bradshaw v. Paduano (Appellate Division of the Supreme Court of New York 1976)
Ouimet v. Humble Oil & Refining Co. (Appellate Division of the Supreme Court of New York 1976)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Judgment and order unanimously reversed on the law and facts and a new trial granted, with costs to abide the event. Memorandum: In granting defendant’s motion at the close of the evidence for judgment in his favor the trial court made it clear that his determination was predicated upon a consideration of the weight of the testimony of the medical expert called by plaintiffs. However, weight of the evidence is not a valid basis for withdrawing the ease from *765a jury upon a motion made pursuant to CPLR 4401, which encompasses motions to dismiss the complaint for a nonsuit, motions for a directed verdict and motions for judgment based on admissions or opening statements. (4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 4401.01.) A motion for judgment at the close of the entire case is substantially equivalent to a motion for a directed verdict made at that point. “ A final determination on the facts by a direction of verdict must rest on broader' ground than weight of evidence alone. A direction may be made only when a contrary verdict would be set aside for legal insufficiency. (Loewinthan v. Le Vine, 299 N. Y. 372)” (Davis v. Caristo Constr. Corp., 19 A D 2d 518, quoted with approval in Matter of Lakin v. MVA1C, 23 A D 2d 488.) “In considering a motion to direct a verdict, the court cannot properly undertake to weigh the evidence. Its duty is to take that view of the evidence most favorable to the nonmoving party, and from the evidence and the inferences reasonably to be drawn therefrom, determine whether or not, under the law, a verdict might be found for the moving party. The test is whether the trial court could find ‘that by no rational process could the trier of the facts base a finding in favor of the [party moved against] upon the evidence * ‘ * presented.’ (Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241, 245)” (Wearever Upholstery & Furniture Corp. v. Some Ins. Co., 286 App. Div. 93, 95.) In the present ease plaintiffs presented proof from which a jury might find that the injuries in question resulted from defendant’s furnishing plaintiff Ruth Wessel with a contact lens which was defective or improperly fitted; defendant presented proof contradicting that offered by plaintiff and which might have exonerated it. Under these circumstances the case should have been submitted to the jury. (Thomas v. City of New York, 25 A D 2d 787.) (Appeal from judgment and order of Brie Trial Term, in negligence action. Order granted motion to dismiss complaint.) Present— Bastow, P. J., Del Yecchio, Harsh, Witmer and Henry, JJ.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.