FABER v. [And A Third Party Action]

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

Patrick FABER, Plaintiff-Appellant, v. NEW YORK CITY HOUSING AUTHORITY, et al., Defendants, New York City Transit Authority, Defendant-Respondent. [And A Third Party Action]

Decided: February 23, 1999

RUBIN, J.P., MAZZARELLI, ANDRIAS and SAXE, JJ. Ira M. Hariton, for Plaintiff-Appellant. David Samel, for Defendant-Respondent.

Judgment, Supreme Court, New York County (Edward Greenfield, J.), entered September 10, 1997, which, to the extent appealed from as limited by the brief, upon the prior grant of defendant New York City Transit Authority's motion to dismiss, made at the close of plaintiff's case pursuant to CPLR 4401, dismissed the complaint against it, unanimously affirmed, without costs.

 The trial court properly dismissed the complaint at the close of plaintiff's case, “since there was no rational basis upon which the jury could have found in favor of plaintiff” (Corsack v. Brody, 255 A.D.2d 222, 223, 679 N.Y.S.2d 822).   We note that the ruling precluding plaintiff's expert from testifying with respect to the ultimate issue of defendant's negligence was proper (see, Nevins v. Great Atl. & Pac. Tea Co., 164 A.D.2d 807, 808-809, 559 N.Y.S.2d 539), and that any error in this regard would, in any event, have been harmless since plaintiff failed to adduce any facts from which it would have been possible for his expert to infer that the train could have stopped before hitting him.

We have considered plaintiff's other arguments and find them to be unpersuasive.

MEMORANDUM DECISION.