22.2 - A. Post-Trial Motion Not For Preserving Appeal Issues
Jurisdiction | New York |
A. Post-Trial Motion Not for Preserving Appeal Issues
The post-trial motion is generally not the vehicle for preserving issues for appeal. A claim raised for the first time in a post-trial motion under N.Y. Civil Practice Law and Rules 4404 (CPLR) is unreviewable unless it is preserved by a timely, specific objection and request for relief during trial.3374
On the other hand, the making of a post-trial motion to set aside the verdict is not a prerequisite to the taking of an appeal, and the appellate division may grant a new trial even in the absence of a motion to set aside the verdict.3375 Of course, the appellate division has its own rules as to the reviewability of preserved and unpreserved claims, but that topic is outside the scope of this chapter.
There are two areas, however, where a timely post-verdict motion may affect a party’s rights on appeal. The first is when the jury returns a verdict that is confusing or inconsistent. The proper procedure in such a circumstance is for the attorney to ask that the jury not be excused so that the trial court can resubmit the case to the jury with further instructions in an effort to resolve the confusion or inconsistency.3376
Although the trial justice should and usually will resubmit the case to the jury whether or not asked to do so, it is incumbent upon the party dissatisfied with the verdict to make sure the jury is not discharged until it has had a chance to reconsider the case. If the...
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- 22.0 - I. Introduction
- 22.1 - II. General Considerations
- 22.2 - A. Post-Trial Motion Not For Preserving Appeal Issues
- 22.3 - B. Strategic Considerations
- 22.4 - 1. Consider Whether Appropriate
- 22.5 - 2. Consider Issues To Be Raised
- 22.6 - III. New York State Court Practice Governing Post-Trial Motions
- 22.7 - A. Post-Trial Motions In Jury And Nonjury Trials
- 22.8 - B. Time And Place Of Motion
- 22.9 - C. Oral Motions After Verdict
- 22.10 - 1. Motion To Set Aside Verdict
- 22.11 - 2. Stay Of Execution Of Judgment
- 22.12 - D. One Motion Only
- 22.13 - E. Possible Post-Trial Motion Relief
- 22.14 - 1. Judgment Notwithstanding The Verdict
- 22.15 - 2. New Trial
- 22.16 - A. Weight Of Evidence
- 22.17 - B. Excessiveness Or Inadequacy Of Award
- 22.18 - C. Inconsistent Or Compromise Verdict
- 22.19 - D. Jury Misconduct
- 22.20 - E. Misconduct Of Counsel, Party Or Judge
- 22.21 - F. Evidentiary Or Charge Errors
- 22.22 - F. Miscellaneous Matters
- 22.23 - 1. Use Of Trial Minutes
- 22.24 - 2. Time To Move
- 22.25 - 3. Form Of Motion
- 22.26 - G. Annuitized Payments; Reduction Of Judgment
- 22.27 - IV. Federal Practice Compared
- 22.28 - A. Post-Trial Motions Generally; Time To Move; Form Of Motions
- 22.29 - B. Motion For Judgment Notwithstanding The Verdict
- 22.30 - C. Motion For New Trial Or To Amend Judgment
- 22.31 - D. Motion To Amend Or Make Additional Findings
- 22.32 - E. Motion For Stay Of Execution
- 22.33 - F. Motion For Relief From Judgment
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