
    [844 NYS2d 561]
    Vitality Chiropractic, P.C., as Assignee of Natalye Konovalova, Respondent, v New York Central Mutual Fire Insurance Company, Appellant.
    Supreme Court, Appellate Term, Second Department,
    August 20, 2007
    
      APPEARANCES OF COUNSEL
    
      Güilo & Associates, LLP, Brooklyn (Anthony De Guerre of counsel), for appellant. Alden Banniettis, Brooklyn (Jeff Henle of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

At the outset of the trial, the court accepted plaintiffs position that it had already established a prima facie case on the ground that another court, in denying plaintiffs 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 plaintiffs 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 AD3d 568, 570 [2007]) and “establishes nothing except that summary judgment is not warranted at this time” (Siegel, NY 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 AD2d 464, 468 [1996]; see also People v Evans, 94 NY2d 499 [2000]; Meekins v Town of Riverhead, 20 AD3d 399, 400 [2005]; Strouse v United Parcel Serv., 277 AD2d 993, 994 [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.

Weston Patterson J.

(concurring in part and dissenting in part and voting to reverse the judgment and dismiss the complaint in the following memorandum). 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, plaintiffs 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, plaintiffs 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 AD3d 591 [2007]).

Pesce, EJ., and Belen, J., concur; Weston Patterson, J., concurs in part and dissents in part in a separate memorandum.  