Crowley v. Brown , 456 N.Y.S.2d 432 ( 1982 )

— In an action to recover a real estate broker’s commission, plaintiff appeals from a judgment of the Supreme Court, Suffolk County (McCarthy, J.), entered August 31, 1981 in favor of defendant, upon dismissal of the complaint at the close of plaintiff’s case at a nonjury trial. Judgment reversed, on the law, and new trial granted, with costs to abide the event. At the conclusion of plaintiff’s case, the Trial Judge dismissed the complaint on the ground that plaintiff had failed to make out a prima facie case of employment of plaintiff by defendant as his broker (CPLR 4401). The court resolved issues of the credibility of the witnesses against the plaintiff. On a motion to dismiss under CPLR 4401, the court should not undertake to weigh the evidence, but must take that view of it most favorable to the nonmoving party (Cox v Don’s Welding Serv., 58 AD2d 1013; Bartkowiak v St. Adalbert’s R. C. Church Soc., 40 AD2d 306). So viewed, a prima facie case was made out. Lazer, J. P., Mangano, Gibbons and Gulotta, JJ., concur.