(III) NEW TRIAL; STIPULATION FOR JUDGMENT ABSOLUTE

• Jurisdiction: United States

(iii) New Trial; Stipulation for Judgment Absolute

One of the few nonfinal dispositions appealable of right to the Court of Appeals is an order of the Appellate Division that grants or affirms the granting of a new trial or hearing (we can refer to it simply as a “new trial order”) in a case originating in one of the previously mentioned “superior” courts or in an administrative agency.⁶³ However, there is a condition imposed that makes this appeal an unappealing option to most parties. To take such an appeal, the appellant must stipulate that “upon affirmance, judgment absolute shall be entered against” the appellant. This means that if the new trial order is affirmed, the result will not be a new trial, but a disposition on the merits against the appellant.

Such an appeal entails great risks, because the Appellate Division has broad power to order a new trial on the facts or as a matter of discretion and the Court of Appeals will reverse the order only upon determining that it is erroneous as a matter of law. Even if the new trial order rested primarily on an erroneous ruling of law and depended only as an alternative on the facts or an exercise of discretion, the Court of Appeals would have no choice but to affirm and direct judgment absolute.⁶⁴ However, where the Appellate Division order recites that it ruled both the law and the facts, the Court of Appeals may examine the decision and conclude that “in reality,” the ruling was based solely on a matter of law.⁶⁵

Suppose, for instance, that in a personal injury action the jury resolves all issues of fact in the plaintiff’s favor and awards $100,000 damages on which judgment is entered, but that on appeal by the defendant the Appellate Division reverses for what it holds to be an error of law in the trial judge’s charge to the jury, and grants a new trial. The plaintiff of course wants the $100,000 judgment reinstated, but in order to appeal to the Court of Appeals the plaintiff must furnish a stipulation for judgment absolute. Doing so, and getting to the Court of Appeals “as of right,” the plaintiff would probably not prevail on the appeal unless the Appellate Division has included a recital in its order or opinion that its grant of a new trial was not based, in the alternative, on the facts or on an exercise of discretion.⁶⁶ Even if there were such a recital, an affirmance could still result if there were some other question of law presented by the record (albeit not mentioned by the Appellate Division), and it appears that the court could have granted the new trial on the basis of that other question of law. Because of the almost impossible burden thus shouldered by the appellant in offering a stipulation for judgment absolute, the procedure is a kind of “CPLR version of Russian Roulette.”⁶⁷

To invoke the stipulation for judgment absolute appeal right, the Appellate Division order must grant a new trial or hearing; an order granting an initial trial (such as an order reversing the grant of summary judgment) does not qualify.⁶⁸ The theory underlying this statute is that through the use of the stipulation there is a chance of...