Gilbert v. Caldwell , 90 A.D.2d 978 ( 1982 )

Judgment unanimously affirmed, without costs. Memorandum: Plaintiff was injured when he was struck by a vehicle owned and operated by defendant while crossing a street. At the close of the evidence, defendant moved for a directed verdict. The trial court, which had heard the case without a jury, found that plaintiff had failed to prove a prima facie case under CPLR 4401 and directed entry of judgment for defendant. The trial court erred in granting defendant’s motion to dismiss since the record before it did not show that “by no rational process could the trier of the facts base a finding in favor of the [plaintiff] upon the evidence here presented” (Blum v Fresh Grown Preserve Corp., 292 NY 241, 245). By making findings of fact the court indicated that it felt there were disputed factual issues which it was necessary to resolve. After reviewing the record, however, we find that plaintiff has failed to prove that defendant was negligent and, accordingly, defendant is entitled to a judgment on the merits pursuant to CPLR 5522 (see, e.g., McAvoy v Harron, 26 AD2d 452, affd 21 NY2d 821; Society of N. Y. Hosp. v Burstein, 22 AD2d 768). (Appeal from judgment of Supreme Court, Monroe County, Tillman, J. — negligence.) Present — Simons, J. P., Hancock, Jr., Doerr, Moule and Schnepp, JJ.