Part XlII In Limine, Trial, And Post-Trial Motions Continued In Limine, Trial, And Post-Trial Motions Continued

• Jurisdiction: New York

Part XLII — In Limine, Trial,
and Post-Trial Motions Continued

The Legal Writer continues its series on civil-litigation documents. In the last issue of the Journal, we discussed trial motions, including motions for a mistrial, for a directed verdict (also called motions for a judgment as a matter of law), for a continuance, to strike, and to reopen the case. In this issue, we’ll continue with trial motions. We’ll also discuss post-trial motions.

Trial Motions Continued

Motion to Amend Pleadings

Under CPLR 3025(b), a party may amend or supplement its pleading at any time with leave of the court.²⁰⁶² A trial court has the discretion to amend the parties’ pleadings.²⁰⁶³ Courts permit parties to amend pleadings.²⁰⁶⁴ You must attach to your motion your proposed amended pleading. In your proposed pleading, clearly show the changes you’ve made or the things you’re hoping to add to the pleading.²⁰⁶⁵ The proposed amendment must be sufficient on its face.²⁰⁶⁶

Move to amend as soon as you become aware of the facts that form the basis of your motion.²⁰⁶⁷

If you move to amend the pleadings on the eve of trial, a court will consider how long you’ve been aware of the facts that form the basis of your motion, whether you’ve offered a reasonable excuse for the delay, and whether your adversary will be prejudiced.²⁰⁶⁸

Motion to Conform Pleadings to the Proof

Under CPLR 3025(c), a court may permit the parties to amend their pleadings “before or after judgment to conform [the pleadings] to the evidence, on such terms as may be just including the granting of costs and continuances.”²⁰⁶⁹ The purpose “is to have the final judgment dictated as much as is reasonable by what the evidence actually reveals at the trial rather than by what the pleadings and bill of particulars alleged it would be.”²⁰⁷⁰

A trial court will allow you to amend pleadings to conform to the proof if your adversary isn’t prejudiced.²⁰⁷¹ Your adversary’s “legitimate claim of surprise is the key” to whether your adversary has been prejudiced.²⁰⁷² A court will amend the pleadings if you’ve advised your adversary “sufficiently of the transaction, occurrence, or event out of which the claim or defense arises . . . that a diligent lawyer could be deemed to have been on notice that the matter now sought to be changed or added by amendment could reasonably have been expected to arise at the trial.”²⁰⁷³

You may amend your pleadings to assert a new theory, as explained below. But you may not amend your pleadings by asserting a different cause of action,²⁰⁷⁴ such as “add[ing] a new substantive claim, otherwise barred by the statute of limitations and clearly beyond what the other side could have expected.”²⁰⁷⁵

If evidence in an examination before trial (EBT) or in another pretrial disclosure device puts your adversary “on notice of what later emerges at the trial, the claim of prejudice dissolves and the [court will likely grant the] amendment.”²⁰⁷⁶

Practitioners usually move orally, before or after judgment, to conform pleadings to the proof. But you may also move by filing a motion with the court. Make your motion to conform the pleadings to the proof before the trial judge.²⁰⁷⁷

A court that grants your motion to amend may state on the record that the pleadings are deemed amended to conform to the evidence; the court need not issue a written decision and order if it deems the pleadings amended.²⁰⁷⁸ You may appeal the court’s decision to amend the pleadings as part of an appeal from the final judgment.²⁰⁷⁹ If you seek to appeal the court’s decision to amend the pleadings before the court issues a final judgment, “secure the entry of a formal order on the court’s ruling [to amend the pleadings] and appeal that.”²⁰⁸⁰

Trial and appellate courts may conform the pleadings to the proof sua sponte.²⁰⁸¹

A court may place conditions on the amendment. The conditions may include the court’s granting of costs and continuances.²⁰⁸² If your adversary opposes your motion to conform the pleadings on the ground of surprise and is unprepared to address the new matter, the court may grant a short adjournment to allow your adversary to secure the witness or proof needed.²⁰⁸³ The court may require the moving party who seeks to amend the pleadings to pay “the objector the costs of securing the belated proof.”²⁰⁸⁴ Even though CPLR 3025(c) is a generous rule, “an amendment at the trial stage that requires an adversary to get new proof to meet it is not always remediable by mere conditions and is therefore not granted for the asking.”²⁰⁸⁵

Motion to Amend Pleadings to Assert a New Theory

You may amend your pleadings during trial to assert a new theory if the amendment won’t prejudice your adversary.²⁰⁸⁶ A court might commit error if it allows you to amend your pleadings without granting an adjournment to your adversary to permit your adversary to prepare a defense; a new trial might be required.²⁰⁸⁷ A court will likely grant your motion if “the responsive proof would have been the same whichever conclusory theory or ground had been pleaded.”²⁰⁸⁸

In opposing your adversary’s motion, demonstrate that your adversary’s motion should be denied because you “would have prepared different proof with which to respond to the altered ground.”²⁰⁸⁹ Or, in addition to or in the alternative, ask for an adjournment to “gather[] . . . such proof.”²⁰⁹⁰

Motion to Amend the Ad Damnum Clause

The ad damnum is “the amount demanded in the wherefore clause of a money complaint.”²⁰⁹¹ A party asserting a counterclaim may also move to amend its ad damnum clause. A court has the discretion to grant your motion to amend your ad damnum clause before, during, or after a trial absent prejudice to your adversary.²⁰⁹²

Formally move to amend the ad damnum clause.²⁰⁹³

A court will likely grant your motion to amend the ad damnum clause if the error is a “typographical oversight . . . [and] the amount involved was elsewhere stated in the pleading.”²⁰⁹⁴

CPLR 3017(c) bans ad damnum clauses in complaints alleging personal injury or wrongful death.²⁰⁹⁵ A party may demand a statement of the amount the pleader believes it’s entitled to.

One scholar has noted that the First Department’s rule on amending ad damnum clauses has become relaxed, whereas the Third Department’s rule has become stricter.²⁰⁹⁶ Follow your department’s rules.

Post-Trial Motions

You may move post-trial if you “disagree[], in whole or in part, with the verdict.”²⁰⁹⁷ Any party may move for post-trial relief.²⁰⁹⁸

Consult CPLR 4404(a) if you’re moving for relief after a jury trial. Consult CPLR 4404(b) if you’re moving for relief after a bench (nonjury) trial.

Under CPLR 4404(a), a court may set aside the verdict and grant judgment to the party entitled to a judgment as a matter of law. This is also called judgment notwithstanding the verdict, or judgment nov.²⁰⁹⁹ Or a court may set aside the verdict and order a new trial on the basis that the verdict is contrary to the weight of the evidence.

You may move post-trial under CPLR 4404 even if you didn’t move under CPLR 4401 (for a judgment as a matter of law, also known as a directed verdict) during the trial: “One is not a condition precedent to the other.”²¹⁰⁰ For more information on moving for a directed verdict, consult Part XLI of this series on civil-litigation documents in the May 2015 Journal. Nonetheless, “a party who loses the verdict and wants judgment n.o.v. is in a more consistent position if [the party] can show that [the party] moved for judgment as a matter of law before the jury retired.”²¹⁰¹

A court may grant relief CPLR 4404 sua sponte.²¹⁰²

Practitioners move under CPLR 4404 “promptly upon the delivery of the verdict [or court’s decision], and made orally in the courtroom.”²¹⁰³ But each party is entitled to submit a formal, written motion.²¹⁰⁴

If you submit a written motion, comply with CPLR 4405 and 4406.²¹⁰⁵ Your motion must be made to the judge who presided over the trial.²¹⁰⁶ You have 15 days after the decision, verdict, or discharge of the jury to move post-trial under CPLR 4404.²¹⁰⁷ The 15-day period isn’t a statute of limitations; a court has the discretion to extend the time period under CPLR 2004.²¹⁰⁸ Appealing a final judgment won’t “cut off the trial court’s power to grant a post-trial motion under CPLR 4404, but argument or submission of the appeal will.”²¹⁰⁹

You’re allowed “only one formal post-trial motion under CPLR 4404.”²¹¹⁰ And “each party shall raise by the motion or by demand under rule 2215 every ground for post-trial relief then available [to the party].”²¹¹¹

If you lose your CPLR 4404 motion, you may still obtain relief under CPLR 5015(a), “the statute that authorizes vacatur of judgments on certain grounds.”²¹¹² Some of the grounds under 5015(a) include newly discovered evidence, or fraud, misrepresentation, or other misconduct.

The technical rules for moving after a bench trial under CPLR 4404(b) are the same as moving after a jury trial under CPLR 4404(a). The court’s powers under CPLR 4404(b) are “more extensive” than under CPLR 4404(a).²¹¹³ Under CPLR 4404(b), the court may “make new findings and conclusions, take additional testimony if need be, and render a new and entirely different decision, while in a trial by jury the judge’s powers are necessarily more restricted.”²¹¹⁴

An appellate court “stands in the same position as the trial court.”²¹¹⁵ After a bench trial, an appellate court “can therefore make whatever findings it determines the trial court should have made and render judgment itself.”²¹¹⁶

Motion for a Judgment Notwithstanding the Verdict
(JNOV or Judgment NOV)

The standard is similar whether you move before the verdict under CPLR 4401 or whether you move after the verdict under CPLR 4404(a) for a judgment nov.²¹¹⁷

A court will grant your motion for judgment nov if “no valid line of reasoning and permissible inferences [exist that] could possibly lead rational [people]” to the jury’s conclusion based on the evidence at trial.²¹¹⁸

A court may grant...