9.37 - F. Motion For Directed Verdict

• Jurisdiction: New York

F. Motion for Directed Verdict

Any party may move for judgment with respect to a cause of action or issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presented by an opposing party with respect to such cause of action or issue, or at any time on the basis of admissions. Grounds for the motion shall be specified. The motion does not waive the right to trial by jury or to present further evidence even where it is made by all parties. ²¹⁶⁵

You must move for a directed verdict when such motion is warranted. A defendant should move for a directed verdict after the plaintiff’s close of evidence; however, with the trial court’s consent, a motion for judgment may be put off until the close of all the evidence.²¹⁶⁶ If you do not move for a directed verdict, you concede that the evidence presents a question for the jury.²¹⁶⁷ A jury verdict against a party who fails to move for a directed verdict is conclusive against such party in the N.Y. Court of Appeals.²¹⁶⁸

G. Jury Instructions

The failure to object to errors in jury instructions has several serious implications. Therefore, you must be alert not only at charge conferences but also when the judge or justice charges the jury. Unless you timely object to the court’s charge, stating the matter to which you object and the ground for your objection, any claim that the court erred in charging or failing to charge the jury is not preserved for appellate review.

Keep the following in mind when making requests for jury instructions and objections to instructions:

At the close of the evidence or at such earlier time during the trial as the court reasonably directs any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court, out of the hearing of the jury, shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury. ²¹⁶⁹

Furthermore, “an appeal from a final judgment brings up for review: . . . any charge to the jury, or failure or refusal to charge as requested by the appellant, to which he objected.”²¹⁷⁰

Therefore, you must make a point of objecting to the jury charge before the jury retires. One commentator offers a plan to preserve for appellate review any objections to jury charges:

Counsel’s initial opportunity to register [objections to errors or omissions in the trial court’s charge] usually comes at the CPLR 4110-b “charge conference,” held prior to summations and

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