Motion for Judgment During Trial (Directed Verdict)

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 409-426

CHAPTER 35

Motion for Judgment During

Trial (Directed Verdict)

§35:01 Definition and purpose New York Trial Notebook 35-2

I. GENERAL POINTS

§35:01 Definition and Purpose

A motion for judgment during trial requests

the trial court to enter judgment for the moving

party without allowing the jury to decide the case.

The court grants the motion when the non-moving

party has failed to establish, or it is manifest that

it cannot establish, a prima facie case and thus the

jury could not find for the non-moving side by any

rational process. [Fenton v. Ives, 229 AD2d 704,

645 NYS2d 150 (3d Dept 1996); Allinger v. City of

Utica, 226 AD2d 1118, 641 NYS2d 959 (4th Dept

1996). See §35:41.]

Although the CPLR refers to a “motion for

judgment during trial,” practitioners more often

refer to a motion for a directed verdict. The terms

“directed verdict” and “motion for judgment” may

be used interchangeably. [Lipsius v. White, 91

AD2d 271, 458 NYS2d 928 (2d Dept 1983).]

§35:02 Authority

Any party may move for judgment during

trial with respect to a cause of action or issue on

the ground that the moving party is entitled to

judgment as a matter of law. [CPLR 4401.]

Trial courts have been known to sua sponte

dismiss a complaint, but this power “is to be

used sparingly and only when extraordinary

circumstances exist to warrant dismissal.” [Fudge

v. North Shore-Long Island Jewish Health Services

Plainview and Manhasset Hospitals, 117 AD3d

783, 785, 986 NYS2d 490, 492 (2d Dept 2014).]

In Fudge, the trial court erroneously sua sponte

dismissed the complaint during (not after the

completion of) plaintiff’s opening statement; no

extraordinary circumstances warranted dismissal,

nor had any of the three factors warranting dismissal

after (emphasis in original) plaintiff’s opening

statement manifested themselves; see §21:140 et

seq.

§35:03 Timing

A motion for judgment during trial may be made:

• After the close of the evidence presented

by an opposing party with respect to the

cause of action or issue on which judgment

is sought [see §35:30 ff]; or

• At any time on the basis of admissions [see

§35:70 ff].

[CPLR 4401.]

Traditionally, defendants move for a directed

verdict when plaintiff rests. The court may grant

or deny the motion, or may reserve ruling until all

the evidence is in. If the court has reserved ruling,

the defendant must renew the motion after all sides

have rested. Plaintiff may move for a directed

verdict after defendant rests. In Burbige v. Siben

& Ferber, 89 AD3d 661, 931 NYS2d 898 (2d

Dept 2011), a legal malpractice case, the judge’s

grant of defendant’s motion which was in effect

for judgment as a matter of law under CPLR 4401,

made before plaintiff had rested, was premature

and necessitated a new trial. Plaintiff had alleged

that defendants had failed to diligently prosecute a

products liability case against a manufacturer of a

ladder which broke while plaintiff was descending

it. After opening statements, defendants moved for

judgment as a matter of law or in the alternative

for an offer of proof that plaintiff would have been

successful in the underlying action by offering

expert testimony that the ladder was defective.

The judge at first reserved decision, but before the

close of plaintiff’s case granted the motion based

on plaintiff’s failure to make the offer of proof, and

dismissed the action. The Second Department said

that the trial court had erred, observing that “the

grant of such a motion prior to the close of the

opposing party’s case generally will be reversed

as premature even if the ultimate success of the

opposing party in the action is improbable.” [Id. at

662, 931 NYS2d at 899.] In Nieves v. City of New

York, 95 AD3d 612, 945 NYS2d 656 (1st Dept

2012), the First Department likewise ordered a

new trial where the judge dismissed the complaint

before plaintiff had rested and his engineering

expert had testified; since the dismissal was not

based on admissions by plaintiff, a new trial was

required.

NOTE:

If a party moves for judgment as a matter

of law under CPLR 4401 before the other

side has rested, and the motion is (properly)

denied, the motion must be renewed at the

proper time, or the movant waives the right