Ronald Glazer, appellant, v. Louis Ottimo, et al., respondents, et al., defendant. (2011)

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

Ronald Glazer, appellant, v. Louis Ottimo, et al., respondents, et al., defendant.

2010–08012 (Index No. 7624 /08)

Decided: May 17, 2011

MARK C. DILLON, J.P. RUTH C. BALKIN JOHN M. LEVENTHAL L. PRISCILLA HALL, JJ.

Ginsburg & Misk, Queens Village, N.Y. (Hal R. Ginsburg of counsel), for appellant. Law Offices of Bradley D. Schnur, Esq., P.C., Jericho, N.Y., for respondents. A defendant's motion for judgment as a matter of law pursuant to CPLR 4401 should be granted only when, as here, accepting the plaintiff's evidence as true, and according that evidence the benefit of every favorable inference that can reasonably be drawn from it, there is no rational process by which the jury could find for the plaintiff against the defendant (see Centennial Contrs.   Enters. v East N.Y. Renovation Corp., 79 AD3d 690, 691–692;  Dockery v Sprecher, 68 AD3d 1043, 1045).   Here, accepting the plaintiff's testimony at trial as true, and affording it every favorable inference, the plaintiff failed to make out a prima facie case that he had entered into a loan agreement with the defendants Louis Ottimo and Anthony Ottimo (hereinafter together the defendants) or that the money he tendered to them personally was not in the nature of an investment.   Furthermore, the plaintiff failed to establish, prima facie, that he reasonably relied, to his detriment, on any material misrepresentation of fact made to him by the defendants.   Accordingly, the Supreme Court properly granted the defendants' motion, made at the close of the plaintiff's case, for judgment as a matter of law.