10.8 III. Preservation for Appellate Review

LibraryNY Post-Trial Practice & Procedures 2010

Case law concerning an attorney’s failure to preserve legal sufficiency issues for appeal is about as clear as the U.S. Tax Code. Consequently, preservation efforts are essential.

Can an attorney move to set aside a verdict based on legal insufficiency pursuant to CPLR 4404(a) even though he or she did not move for a directed verdict at the close of evidence pursuant to CPLR 4401? Although Professor David Siegel observed that the CPLR presumably abolished such a requirement, he also noted that the requirement “appears to be hanging on in some quarters.”621 Professor Siegel cites Hurley v. Cavitolo622 for the proposition that the preservation requirement is still alive and well.

In Hurley, the plaintiff argued on appeal that she was entitled to judgment as a matter of law regarding liability in an automobile accident. The plaintiff appealed from a judgment after a jury verdict finding in favor of the defendant and against her. The Second Department held that plaintiff’s contention that she was entitled to judgment as a matter of law on the liability issue was not preserved for appellate review because she failed to move for a directed verdict on the issue pursuant to CPLR 4401. The Hurley case is one of many that cast doubt on the preservation requirement’s...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT