Gisele Kamanou, appellant, v. Yvonne Bert, respondent, et al., defendant. (2012)

Supreme Court, Appellate Division, Second Department, New York.

Gisele Kamanou, appellant, v. Yvonne Bert, respondent, et al., defendant.

2010–04954 (Index No. 9791 /04)

Decided: April 03, 2012

MARK C. DILLON, J.P. DANIEL D. ANGIOLILLO ANITA R. FLORIO JEFFREY A. COHEN, JJ.

Gisele Kamanou, New Rochelle, N.Y., appellant pro se. Carolyn V. Minter, Ossining, N.Y., for respondent. The Supreme Court erred in granting the motion of the defendant Yvonne Bert, in effect, pursuant to CPLR 4401 for judgment as a matter of law, and dismissing the complaint insofar as asserted against her before the plaintiff presented her case (see CPLR 4401).  “A motion for judgment as a matter of law is to be made at the close of an opposing party's case or at any time on the basis of admissions (see CPLR 4401), and the grant of such a motion prior to the close of the opposing party's case generally will be reversed as premature even if the ultimate success of the opposing party in the action is improbable” (Burbige v Siben & Ferber, 89 AD3d 661, 662;  see Canteen v City of White Plains, 165 A.D.2d 856;  Goldstein v C.W. Post Ctr. of Long Is. Univ., 122 A.D.2d 196;  Cass v Broome County Coop. Ins. Co., 94 A.D.2d 822, 823;  Page v City of New York, 79 A.D.2d 573).   Although the plaintiff, who appeared at trial pro se, advised the Supreme Court that she did not bring any witnesses, the Supreme Court should have afforded her the opportunity to testify with an interpreter and present evidence on her own behalf (see CPLR 4512) before granting Bert's motion for judgment as a matter of law pursuant to CPLR 4401.   Therefore, the judgment must be reversed, the motion denied, the complaint reinstated, and a new trial granted.