Here is a reported case in which the case against defendant was dismissed after openings. This occurrence is rare, rare, rare. Worse yet, plaintiff suffered complete dismissal at the end of plaintiff’s case. What was counsel doing and thinking??
"Plaintiff’s opening statement failed to make out a prima facie case of negligence against the driver of the car involved in the alleged accident. Therefore, there could have been no finding of liability against the car’s owner, defendant Diaz, since any liability on his part would have been derivative of the driver’s (Vehicle and Traffic Law § 388). Accordingly, the court properly dismissed the action as against Diaz immediately after opening statements (see Giroux v Snedecor, 178 AD2d 802 ).
The complaint against the City was properly dismissed at the close of evidence. Even if the City created the bump to which plaintiff attributes the accident in which he was injured, there was no competent evidence that the bump was hazardous at the time of its creation (see Bielecki v City of New York, 14 AD3d 301 ). The trial court properly precluded the testimony of plaintiff’s expert, since there was no showing that the proposed testimony would clarify an issue [*2]involving professional or technical knowledge beyond the ken of the typical juror (see GMAC Commercial Credit v Mitchell-B.J. Ltd., 272 AD2d 51 ).