Opinion
January 21, 1971
Judgment, Supreme Court, New York County, entered on April 21, 1969, dismissing the complaint unanimously reversed on the law and vacated, the complaint reinstated and the case remanded for a new trial, with costs and disbursements to plaintiff against the City of New York to abide the event. The complaint was dismissed by the trial court based upon plaintiff's "offer of proof" requested by the Trial Judge during the selection of the jury. If we analogize the court mandated offer of proof made by plaintiff's counsel with an opening statement, the complaint may be dismissed only where it clearly appears either that (1) the complaint does not state a cause of action, (2) a cause of action is conclusively defeated by an admitted defense or (3) counsel by his admission or statement of fact has completely ruined his cause. (See 8 Carmody-Wait 2d, New York Practice, § 59:13; Black v. Judelsohn, 251 App. Div. 559, 560; Hoffman House v. Foote, 172 N.Y. 348; Murphy v. Hopper, 75 App. Div. 606.) The trial court acted too precipitously and prematurely in dismissing the complaint at that juncture of the proceedings; the amended complaint and offer of proof stated a cause of action entitling plaintiff to a trial. In view of the foregoing disposition, the appeal from the order of said court entered on August 26, 1970, denying the motion to vacate the judgment of April 21, 1969, is dismissed as moot, without costs and without disbursements.
Concur — McGivern, J.P., Markewich, Nunez and Steuer, JJ.