Vitality Chiropractic, P.C. v. New York Central Mutual Fire Insurance , 844 NYS2d 561 ( 2007 )

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.