22.2 - A. Post-Trial Motion Not For Preserving Appeal Issues

JurisdictionNew 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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