Motion for Judgment During Trial (Directed Verdict)

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 513-532

DIRECTED VERDICT

CHAPTER 35

MOTION FOR JUDGMENT

DURING TRIAL

(DIRECTED VERDICT)

§35:01 New York Trial Notebook 35-2

DIRECTED VERDICT

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

to argue entitlement to judgment as a matter

of law. [Bodge v. Red Hook Senior Housing

Development Fund Co., Inc., 85 AD3d 1073,

926 NYS2d 298 (2d Dept 2011).]