Opinion
May 29, 1990
Appeal from the Supreme Court, Putnam County, Fred A. Dickinson, J.
Pirraglia, Rosenblatt McGarrity for appellant. Mead, Dore, Voute (Timothy P. Coon of counsel), for respondent.
On the appeal before us, the defendant moved to dismiss the complaint immediately following the plaintiff's opening statement, asserting that the opening statement was insufficient to establish a prima facie case. Affording the plaintiff no opportunity to expand on the opening by way of an attempted offer of proof, the trial court dismissed the complaint. For the reasons which follow, the judgment is reversed, and a new trial is granted.
We take the opportunity to discuss the law relating to the purpose of the opening statement in civil trials, and to articulate appropriate standards to be applied by a trial court when an opening statement is challenged as deficient.
The civil case opening statement has periodically been at issue on appeal, but discussion, of late, has been generally sparse. The most recent authoritative treatment of the opening statement has pertained to criminal trials, and comparisons are apt, as is elaboration on the civil case opening, considering that two misconceptions seem to have grown up. One is mentioned by Professor David Siegel (Siegel, N.Y. Prac § 395, at 516) who, speaking of civil case openings, states that "[c]ontrary to popular misconception, a party is not rigidly bound by his opening[s]". A related misconception, directly involved in this appeal, is the belief that if an opening statement is attacked as deficient, the party facing dismissal may not correct, repair, or expand upon its contents.
In this case the plaintiff, in his complaint, asserted that he was driving his car on Route 6 in the Town of Carmel, in Putnam County, when the defendant negligently crossed over into the plaintiff's lane, causing a collision, as a result of which the plaintiff suffered serious injuries. The defendant put in a general denial, and, upon the defendant's motion for summary judgment, the court sustained the complaint, concluding that there were issues of fact requiring a trial. At the trial, after the defendant assailed the plaintiff's opening statement as inadequate, the plaintiff sought to expand upon it, but the court denied the plaintiff the opportunity to do so, stating that there is no provision in the law to amend an opening statement following a motion to dismiss.
I
Unlike the criminal law's statutory provisions which place a duty on the prosecutor to open to the jury (CPL 260.30), the CPLR carries no such statutory requirement on anyone's part. The only CPLR provision governing opening statements is rule 4016, which gives the parties the right to make an opening.
Because the right has long been recognized as one of supreme importance (Huntington v. Conkey, 33 Barb 218; Kappa Frocks v. Alan Fabrics Corp., 263 App. Div. 326) constituting a unique opportunity to advance one's cause, to communicate the issues to the jury, and to present the facts to be proven (Tisdale v. President of Del. Hudson Canal, 116 N.Y. 416, 419; Ayrault v. Chamberlain, 33 Barb 229; Kley v. Healy, 127 N.Y. 555, 559), cases dealing with the waiver of an opening in a civil trial by a party carrying the burden of proof are all but unheard of, and discussion is rare (see generally, Abbott's Civil Jury Trials § 88, at 196 [5th ed]; 6 Carmody-Wait, N.Y. Prac § 2, at 425; 1 Lane's Goldstein Trial Technique § 10.11 [3d ed]; see also, Bender v. Terwilliger, 48 App. Div. 371, affd 166 N.Y. 590).
Not surprisingly, therefore, a good deal of the legal writing relating to the opening statement is found in treatises on trial tactics and strategies (see, e.g., Decof, Art of Advocacy, Opening Statement [Bender 1981; 1989 Supp]; Givens, Advocacy § 17.01, at 298; 75 Am Jur 2d, Trial, §§ 202-210; Trial Handbook for New York Lawyers § 6:1 et seq. [2d ed]; 1 Schweitzer, Cyclopedia of Trial Practice § 172 et seq. [2d ed]; Kelner and Kelner, Opening Statements: Trends and Changes, NYLJ, Feb. 14, 1990, at 3, col 1; Busch, Law and Tactics in Jury Trials, ch 12, § 221, at 318-333 [1949]; 2 Averbach, Handling Accident Cases, ch 23, § 231 et seq. [rev ed 1973]).
The right to make an opening statement is guarded with sufficient zeal that a protested denial of that right is error (Lohmiller v. Lohmiller, 140 A.D.2d 497) and may be a basis for ordering a new trial (Conselyea v. Swift, 103 N.Y. 604).
Consequently, there is an established body of civil case law dealing with who may seize the right to open, which is, of course, related to who must carry the burden of proof, or, as it has been called, the "affirmative of * * * the issue" (Elwell v Chamberlin, 31 N.Y. 611, 612; Millerd v. Thorn, 56 N.Y. 402). This is usually determined by the trial court, with reference to the pleadings (Lake Ontario Natl. Bank v. Judson, 122 N.Y. 278, 283), so that the plaintiff will normally, but not necessarily, hold the right (4 Weinstein-Korn-Miller, N.Y. Civ Prac ¶ 4016.05 et seq.; Heilbronn v. Herzog, 165 N.Y. 98).
II
There is no CPLR provision for the dismissal of a complaint based on the plaintiff's opening statement. CPLR 4401, however, contemplates judgment for a party on the strength of "admissions" which, at least theoretically, includes dismissal of a complaint upon the basis of a plaintiff's opening statement (see, 1958 Report of Temporary Commn on Cts, 2d Preliminary Report of Advisory Comm on Prac and Pro, at 306; 8 Carmody-Wait 2d, N.Y. Prac § 59:13, n 1). If, however, CPLR 4401 is to be relied upon, the admissions must be so self-defeating as to irreparably preclude all possibility of judgment (Hoffman House v. Foote, 172 N.Y. 348; Siegel, N.Y. Prac § 402).
The Civil Practice Act contained no such provision (6 Carmody-Wait, N.Y. Prac Supp § 3, at 159-160), nor do the Federal Rules of Civil Procedure (Lampka v. Wilson Line, 325 F.2d 628).
Moreover, as has been pointed out, a party is not so rigidly bound by an opening that every slip or omission, however reparable or unguarded, is ipso facto fatal (Stines v. Hertz Corp., 45 A.D.2d 751; Goodman v. Brooklyn Hebrew Orphan Asylum, 178 App. Div. 682).
In a writing akin to a historical treatise, and drawing upon English law, the Supreme Court of Nebraska (Temple v. Cotton Transfer Co., 126 Neb. 287, 289, 253 N.W. 349, 350) addressed these issues in decrying the prospect of dismissal on opening, terming it "peculiar to American jurisprudence."
The test for dismissing a complaint on the opening statement has been formulated with slight variation, but the analysis has been essentially the same since it was articulated over a century ago by the United States Supreme Court in Oscanyan v. Arms Co. ( 103 U.S. 261), with similar expressions by Judge Rapallo in Clews v. Bank of N.Y. Natl. Banking Assn. ( 105 N.Y. 398), and Judge O'Brien in Hoffman House v. Foote ( 172 N.Y. 348, supra). Although there were earlier, consonant points of view (see, e.g., Sheridan v. Jackson, 72 N.Y. 170), Clews and Hoffman House mark the development of a line of authority in New York, by which the prospect of a dismissal on opening exists only when, from all available indications, the case is doomed to defeat. These cases, and their progeny, tell us that the trial court has the power to dismiss upon the opening, but that the power should be exercised "with great caution" (Mortimer v. East Side Sav. Bank, 251 App. Div. 97, 98).
Thus, the courts have described the "danger[s]" of dismissal on opening (Malcolm v. Thomas, 207 App. Div. 230, 231, affd 238 N.Y. 577), with admonitions that the practice is "unsafe" (Gilbert v. Rothschild, 280 N.Y. 66, 70), disfavored (Davidson v. Hillcrest Gen. Hosp., 40 A.D.2d 693; Kreuger v. Kreuger, 78 A.D.2d 692; Patterson v. Serota, 135 A.D.2d 521), and "not [to] be encouraged" (Brush v. Lindsay, 210 App. Div. 361, 362; see also, Bench Book for Trial Judges, New York Practice Library § 26, at E-10, E-11 [Lawyer's Co-op 1989]; Wright and Miller, 9 Federal Practice and Procedure § 2533, at 584, n 94; 1 Mottla, New York Evidence § 551, at 493 [2d ed 1966]). In this background, a number of criteria have been developed over the years.
In entertaining a motion to dismiss following the opening statement, the court, in exploring the viability of the case, should consult the pleadings, including, of course, the complaint (Backman v. Rodgers, 153 App. Div. 299, 301), and the bill of particulars (Majeski v. Accurate Constr. Co., 13 A.D.2d 986; Bignami v. Caristo Constr. Corp., 37 A.D.2d 851; Morgan v. Town of N. Hempstead, 43 A.D.2d 591; O'Leary v. American Airlines, 100 A.D.2d 959) to aid in the determination of whether there is going to be enough to warrant the eventual submission of the case to the jury.
In making that evaluation, the court must assume that every material fact is to be resolved in favor of the plaintiff (Gilbert v. Rothschild, 280 N.Y. 66, 70, supra; French v. Central N Y Power Corp., 275 App. Div. 238; Runkel v. City of New York, 282 App. Div. 173, 179), affording every inference in support of the complaint (Oakeshott v. Smith, 104 App. Div. 384, 385, affd 185 N.Y. 583) which, for these purposes, must be accepted as true (Spallholz v. Sheldon, 148 App. Div. 573), or, at least provable (Backman v. Rodgers, supra; Loeb v. Goldsmith, 176 App. Div. 747). Having done so, the court should not dismiss unless there is "no doubt" that the plaintiff cannot recover (Wiren v. Long Is. R.R. Co., 222 App. Div. 812; Schaefer v. Karl, 43 A.D.2d 747). Dismissal is therefore unauthorized if there is any view under which the plaintiff may succeed (Diglio v. Rosoff Subway Constr. Co., 242 App. Div. 643; Black v. Judelsohn, 251 App. Div. 559), or any theory by which it may prevail (Painter v Fletcher, 182 App. Div. 616; Penn Cent. Transp. Co. v. Singer Warehouse Trucking Corp., 86 A.D.2d 826). Once this test is passed, in that the complaint is deemed to have stated a cause of action, the court must then examine whether the valid complaint is conclusively defeated either by a clearly and factually admitted defense, or by an admission or concession (see, Alexander v. Seligman, 131 A.D.2d 528) so ruinous to the plaintiff's case that dismissal is warranted (Darton v Interborough R.T. Co., 125 App. Div. 836, 838). These inquiries constitute the so-called three-prong test that courts have come to apply (see, e.g., Darton v. Interborough R.T. Co., supra; Becker v. David Askin, Jr., Inc., 36 A.D.2d 520; Seminara v Iadanza, 131 A.D.2d 457; O'Leary v. American Airlines, supra; see generally, 75 Am Jur 2d, Trial, § 505; Annotation, Dismissal, Nonsuit, Judgment, or Direction of Verdict on Opening Statement of Counsel in Civil Action, 5 ALR3d 1405; 8 Carmody-Wait 2d, NY Prac §§ 59:13, 59:14).
We speak of the plaintiff only insofar as it is that party who faced dismissal here, and because it is far more frequent that motions to dismiss on opening are made against plaintiffs. Judgments granted to plaintiffs on the basis of defendants' opening statement admissions, however, are not entirely unknown (see, e.g., Flatt v. Wiggs, 181 Okla. 26, 72 P.2d 815; Tinsley v Majorana, 240 S.W.2d 539, 541 [Ky]; Alexander v. Manza, 132 N.J.L. 374, 40 A.2d 775; Bias v. Reed, 169 Cal. 33, 145 P. 516; see generally, Annotation, Dismissal, Nonsuit, Judgment, or Direction of Verdict on Opening Statement of Counsel in Civil Action, 5 ALR3d 1405, 1416 [nn 10, 11], 1453; 75 Am Jur 2d, Trial, § 506). Dismissal on the opening is recognized as against any cause of action, whether stated in a complaint, counterclaim, interpleader complaint, or third-party complaint, and is even said to be "available" as against an affirmative defense in an answer or reply (4 Weinstein-Korn-Miller, N.Y. Civ Prac ¶ 4016.14).
This is not to say that a trial court should be so indulgent as to sustain a case which, from all indications, has no legal basis. Certainly, if a case must predictably fail, it is far preferable to grant what amounts to summary judgment long before a jury has been summoned and addressed. If, nonetheless, on the opening it becomes obvious that the suit cannot be maintained because it lacks a legal basis or, when taken in its strongest light, cannot succeed, the court has the power to dismiss (Best v. District of Columbia, 291 U.S. 411), and such rulings have been upheld (see, e.g., Sheridan v. Jackson, 72 N.Y. 170; Stamm v Purroy, 170 App. Div. 584; Ackley v. Board of Educ., 174 App. Div. 44; Dalury v. Rezinas, 183 App. Div. 456, affd 229 N.Y. 513; Denenfeld v. Baumann, 40 App. Div. 502; Oakeshott v. Smith, 104 App. Div. 384, affd 185 N.Y. 583, supra; Kline v. Long Is. R.R. Co., 17 A.D.2d 988, affd 13 N.Y.2d 773; Frolish v. Ryder Truck Rental, 63 A.D.2d 799; Jurewicz v. Lucarelli, 77 A.D.2d 751; McLoughlin v. Holy Cross High School, 135 A.D.2d 513; Perretti v City of New York, 132 A.D.2d 537; see also, Miller v. Morse, 9 A.D.2d 188). In no case, however, has dismissal been upheld where the plaintiff's attorney was denied the request to make an offer of proof in support of the opening statement, after it was challenged as inadequate.
III
In the multitude of New York cases dealing with opening statement dismissals in civil cases, there is almost nothing written explicitly about permitting an attorney to make an offer of proof to the court, in an attempt to correct or enhance the contents of an opening statement that has been attacked, on a motion to dismiss, as inadequate. Perhaps this dearth of authority has contributed to the misconception that the granting of such permission is either unauthorized, outside the discretionary powers of the trial court, or not sporting. Another possible reason for this scarcity of authority may be the perception — perhaps not unjustified — that omissions in civil case openings have been treated somewhat more forgivingly (see, e.g., Stewart v. Hamilton, 18 Abb Pr 298; Stines v. Hertz Corp., 45 A.D.2d 751, supra; Goodman v. Brooklyn Hebrew Orphan Asylum, 178 App. Div. 682, supra) than in criminal cases, where the prosecutor's opening to the jury has long been statutorily required (CPL 260.30 [former Code Crim Pro § 388 (1)]; People v. Brown, 158 A.D.2d 461; Matter of Mortillaro v. Posner, 147 A.D.2d 701), and nonwaivable (People v. Klein, 7 N.Y.2d 264, 267).
As for waiver in a nonjury criminal trial, see People ex rel. Jones v. Abrams ( 114 A.D.2d 481; CPL 320.20 [3] [a]; 350.10 [3] [a]). For the sequence of opening, and waiver by the defendant in a criminal case, see Annotation, Time as of which defense counsel in criminal case may make opening statement (93 ALR2d 951).
Nevertheless, there are close parallels between opening statement dismissals in criminal and civil cases. Although the trial court, in a criminal case, has the power to dismiss based on the prosecutor's opening statement (see generally, Annotation, Power of Trial Court to Dismiss Prosecution or Direct Acquittal on Basis of Prosecutor's Opening Statement, 75 ALR3d 649) the prosecution "'[should] not be undone' simply because there was some defect" in the opening statement (People v. Kurtz, 51 N.Y.2d 380, 385, cert denied 451 U.S. 911, citing People v. De Tore, 34 N.Y.2d 199, 207, cert denied sub nom. Wedra v. New York, 419 U.S. 1025; see also, United States v. Donsky, 825 F.2d 746).
This is to be distinguished from assertions that the prosecutor's opening statement was so improper as to form the basis for challenge on appeal (see, e.g., People v. Torres, 141 A.D.2d 682, appeal withdrawn 72 N.Y.2d 867 [harmless error]; People v. Blyden, 142 A.D.2d 959, lv denied 72 N.Y.2d 955 [harmless error]; People v. Smith, 125 A.D.2d 614 [harmless error]; People v. Widger, 126 A.D.2d 962 [unpreserved error]; People v. Woodberry, 56 A.D.2d 613 [cumulative error]; People v Cruz, 100 A.D.2d 882 [reversible error]; People v. Ware, 13 A.D.2d 1015 [reversible error]; People v. Streeter, 67 A.D.2d 877 [cumulative error]; People v. Allen, 74 A.D.2d 640, 644 [cumulative error]; see generally, Annotation, Reference by counsel for prosecution in opening statement to matters which he does not later attempt to prove as ground for new trial, reversal, or modification, 28 ALR2d 972; Annotation, Prosecutor's Reference in Opening Statement to Matters Not Provable or Which He Does Not Attempt to Prove as Ground for Relief, 16 ALR4th 810; 34 N.Y. Jur 2d, Criminal Law, § 2468; 1 CJI[NY] 3.03).
This language strongly resembles the civil case caution against dismissal. Moreover, in criminal cases, the Court of Appeals has instructed trial courts to refrain from dismissing an indictment on opening without first giving the prosecutor a chance to correct any deficiency in the opening (People v. Kurtz, supra, at 385; People v. Coppa, 57 A.D.2d 189, revd on other grounds 45 N.Y.2d 244), following which, the test for dismissal is whether the indictment may be sustained "under any view of the evidence" (People v. Kurtz, supra, at 385). This is the very standard that governs civil case dismissals (Diglio v. Rosoff Subway Constr. Co., 242 App. Div. 643, supra; Black v. Judelsohn, 251 App. Div. 559, supra).
In criminal trials, therefore, the opportunity to correct a deficiency in the opening is now expressly established (see, e.g., People v. Mack, 131 A.D.2d 784, 785; Matter of Kopilas v People, 111 A.D.2d 174; see also, Matter of Timothy L., 71 N.Y.2d 835 [applying the rule in juvenile delinquency case]), and we perceive no reason why the same opportunity should not be afforded to a party facing dismissal in civil trials.
Although the courts have not expounded as pointedly on the opportunity to repair an opening statement in a civil trial, as compared with one in a criminal trial (People v. Kurtz, supra), it is, nevertheless, evident from a review of civil case decisions that such a procedure is at least contemplated (Clews v. Bank of N.Y. Natl. Banking Assn., 105 N.Y. 398, supra; Garrison v. McCullough, 28 App. Div. 467; Ward v. Jewett, 4 Robt 714; Stamm v. Purroy, 170 App. Div. 584, supra; Eckes v. Stetler, 98 App. Div. 76; Black v. Judelsohn, supra; Goodman v. Brooklyn Hebrew Orphan Asylum, 178 App. Div. 682, supra), and if courts have not expressly endorsed the practice in so many words, we do so today, and thereby acknowledge the propriety and desirability of an approach that has been recognized in other jurisdictions (see, Stone v. Millstein, 804 F.2d 1434; Impero v Whatcom County, 71 Wn.2d 438, 430 P.2d 173; Gibson v Grant, 766 S.W.2d 706 [Mo]; Wilkey v. State ex rel. Smith, 238 Ala. 595, 192 So. 588; Winter v. Unaitis, 123 Vt. 372, 189 A.2d 547; Ambrose v. Detroit Edison Co., 380 Mich. 445, 157 N.W.2d 232; Marcum v. Sagehorn, 660 S.W.2d 426 [Mo]; Passaic Val. Sewerage Commrs. v. Brewster Son, 32 N.J. 595, 161 A.2d 503; Auto Owners Mut. Ins. Co. v. Phillips, 12 Ohio Misc. 167, 227 N.E.2d 420).
IV
In the case before us, there is no claim that the plaintiff's opening statement was prejudicial, so as to be deserving of a mistrial (see, e.g., Estes v. Town of Big Flats, 41 A.D.2d 681; Raplee v. City of Corning, 6 A.D.2d 230, 233; Cohn v. Meyers, 125 A.D.2d 524). It was, rather, challenged as inadequate, ostensibly because the plaintiff's attorney, in his opening, revealed that there would be no one called who actually witnessed the accident.
The subject of the prejudicial effect in counsel's opening statement in civil cases is treated in Annotation, Prejudicial effect, in counsel's opening statement in civil case, of remarks disparaging opposing counsel, opponent, or opponent's case or witnesses, 68 ALR2d 999 (see also, Annotation, Reference by counsel in opening statement in civil case to matters which he does not attempt to prove as ground for new trial or reversal, 118 ALR 543).
Although the lack of any eyewitness may make a case more difficult to prove, this disclosure did not amount to an admission that was "ruinous" to the success of the case, or otherwise bespeak an irreparable inability to proceed (see, e.g., Wilson v. Schindler Haughton Elevator Corp., 118 A.D.2d 777; Flynn v. Long Is. R.R., 37 A.D.2d 595; Rinder v. City of New York, 258 App. Div. 1063; Egan v. Boenig, 222 App. Div. 836). The test, as we have seen, is not the improbability of success (Darton v. Interborough R.T. Co., 125 App. Div. 836, 838, supra), but whether the case can go forward on any plausible theory or view of the facts. In our case, the plaintiff, when challenged, attempted to show that there was a tenable basis upon which he could present a prima facie case notwithstanding that both drivers had amnesia following their head-on automobile collision, but the court foreclosed the offer of proof. It is possible, however, to prove a personal injury action without eyewitness testimony as, for example, in cases involving wrongful death or amnesia (Cole v. Swagler, 308 N.Y. 325; Wragge v. Lizza Asphalt Constr. Co., 17 N.Y.2d 313; Wartels v. County Asphalt, 29 N.Y.2d 372; Matter of Fasano v. State of New York, 113 A.D.2d 885; Horne v. Metropolitan Tr. Auth., 82 A.D.2d 909), and it has been held reversible error to dismiss on opening a case that appears to rest on circumstantial evidence (Wilson v. Schindler Haughton Elevator Corp., supra; Darton v Interborough R.T. Co., 125 App. Div. 836, supra). Because the plaintiff did not have a chance to present the offer of proof, we do not know what proof he was prepared to introduce. Accordingly, the judgment is reversed, and a new trial is granted.
THOMPSON, J.P., RUBIN and MILLER, JJ., concur.
Ordered that the judgment is reversed, on the law, and a new trial is granted, with costs to abide the event.