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Supreme Court, Appellate Term, New York.

VITALITY CHIROPRACTIC, P.C. as Assignee of Natalye Konovalova, Respondent, v. NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Appellant.

Decided: August 20, 2007

PRESENT:  PESCE, P.J., WESTON PATTERSON and BELEN, JJ. Gullo & Associates, LLP, Brooklyn (Anthony De Guerre of counsel), for appellant. Alden Banniettis, Brooklyn (Jeff Henle of counsel), for respondent.

Appeal from a decision of the Civil Court of the City of New York, Queens County (Charles J. Markey, J.), dated March 30, 2005, deemed an appeal from the judgment entered on March 30, 2005 (CPLR 5520[c] ).  The judgment, after a nonjury trial, awarded plaintiff the principal sum of $694.84.

Judgment reversed without costs and matter remanded to the court below for a new trial.

 At the outset of the trial, the court accepted plaintiff's position that it had already established a prima facie case on the ground that another court, in denying plaintiff's prior motion for summary judgment, had noted that plaintiff established its prima facie case upon said motion thereby shifting the burden to defendant, which finding became the law of the case, obviating the necessity of further proof as to plaintiff's prima facie case at trial.   In light of the foregoing, plaintiff noted that it had no other witnesses or proof to present “at this time” and rested.   When defendant presented no evidence, the court found in favor of plaintiff.   Defendant appeals and we reverse.

 “[T]he denial of a motion for summary judgment is not an adjudication on the merits” (Metropolitan Steel Indus., Inc. v. Perini Corp., 36 A.D.3d 568, 570, 828 N.Y.S.2d 395 [2007] ) and “establishes nothing except that summary judgment is not warranted at this time” (Siegel, N.Y. Prac. § 287, at 470 [4th ed.] ).  “What is determined' on a motion for summary judgment is the entitlement of a party to a pretrial judgment upon the affidavits and proofs before the court at that time, not the issues defined by the living testimony and proofs at trial” (Cushman & Wakefield v. 214 E. 49th St. Corp., 218 A.D.2d 464, 468, 639 N.Y.S.2d 1012 [1996];  see also People v. Evans, 94 N.Y.2d 499, 706 N.Y.S.2d 678, 727 N.E.2d 1232 [2000];  Meekins v. Town of Riverhead, 20 A.D.3d 399, 400, 798 N.Y.S.2d 133 [2005];  Strouse v. United Parcel Serv., 277 A.D.2d 993, 994, 716 N.Y.S.2d 521 [2000] ).   We note that in denying a motion for summary judgment, a court may, pursuant to CPLR 3212(g), determine “what facts are not in dispute or are incontrovertible ․ [and] make an order specifying such facts [which] shall be deemed established for all purposes in the action.”   However, the order herein identified no particular facts as established, merely a conclusion of law that plaintiff had set forth facts upon the motion sufficient to shift the burden to defendant for purposes of the motion.

Accordingly, the judgment is reversed and a new trial ordered.

While I concur with the substance of the majority's opinion and its reversal of the judgment, I disagree with the majority's decision to order a new trial.   In my view, and under the circumstances of this case, plaintiff's complaint should be dismissed.

It is evident from the record that before the court ruled on its motion for a directed verdict, plaintiff had no intention of presenting a case at trial.   Plaintiff made clear that, based on a prior decision denying its motion for summary judgment, plaintiff had established a prima facie case and, thus, there was no need to go forward.   Indeed, plaintiff's counsel admitted that he had no witnesses to produce and rested without presenting any evidence.   In these circumstances, I find no reason to afford plaintiff a second opportunity for a new trial, especially when he clearly chose to forgo offering any proof below.   As defendant notes on appeal, since plaintiff failed to meet its burden of establishing a prima face case at trial, plaintiff's complaint should be dismissed (see Tsatsakis v. Booth Mem. Med. Ctr., 37 A.D.3d 591, 829 N.Y.S.2d 646 [2007] ).

PESCE, P.J., and BELEN, J., concur. WESTON PATTERSON, J., concurs in part and dissents in part in a separate memorandum.