Post-Verdict Proceedings

• Author: Edward L. Birnbaum/Carl T. Grasso/Justice Ariel E. Belen
• Pages: 1135-1248

POST-VERDICT

PROCEEDINGS

38-1

CHAPTER 38

POSTVERDICT PROCEEDINGS

I. OVERVIEW

§38:01 In General

§38:02 CPLR Article 44

§38:03 Power to Relieve Party From Judgment

§38:04 Harmless Error

§38:05 Timing

§38:06 Post-Verdict Motions Before Trial Judge

§38:07 Motion to Reconsider Decision on Post-Verdict Motion

§38:08 Annex Trial Transcript to the Motion

§38:08.1 Where Record Cannot Be Reconstructed

§38:09 Include All Grounds in the Post Trial Motion

§38:10 Submitting a Judgment Is Not a Proper Substitute for a CPLR 4404 Motion

II. MOTION FOR JUDGMENT

§38:20 In General

§38:21 Court May Not Consider Credibility

§38:22 Jury’s Own Unsupported Theories

§38:23 Prior Motion for Summary Judgment

§38:24 Party Must Have Moved for Directed Verdict

§38:25 Court Not Constrained by Application for Relief

§38:26 Motion Based Upon New Law

§38:27 Inconsistent Verdict

§38:28 Non-Jury Case Decisions: Court Acting as Fact-Finder vs. JNOV

III. MOTION FOR NEW TRIAL

A. Grounds

§38:30 In General

§38:31 Weight of Evidence

§38:32 Interests of Justice

B. Weight of Evidence

§38:40 Discretionary Factors

§38:41 Against J.N.O.V.

§38:42 Defendants Favored?

§38:43 Apportionment of Fault

§38:44 Redistribution of Fault

C. Interests of Justice

§38:50 Errors in Conduct of Trial

§38:51 Erroneous Treatment of Evidence

POST-VERDICT

PROCEEDINGS

New York Trial Notebook 38-2

§38:52 Erroneous Instructions and Verdict Form

§38:53 Inconsistent Verdict

§38:54 Surprise

§38:55 Mention of Insurance

§38:56 Juror Misconduct

§38:57 Juror Confusion

§38:58 Misconduct of Judge

§38:59 Juror Coercion

§38:60 Discharge of Juror

§38:61 Change in Law

§38:62 Case Tried Without Jury

§38:63 Judgment as a Matter of Law Improperly Granted

§38:64 Conduct of Parties

§38:65 Conduct of Counsel

§38:66 “Interest of Justice” Can Be a “Catch-All”

D. Interplay With CPLR 5015

§38:70 Motion For Relief from Judgment or Order: In General

§38:71 Newly Discovered Evidence

§38:72 Fraud, Misrepresentation or Misconduct of Adverse Party

IV. ADJUSTMENT OF AMOUNT OF DAMAGES

A. Adjustments in General

§38:80 Motion for Remittitur or Additur

§38:81 Adjustment for Income Taxes

§38:82 Motion to Reduce Award—“Loss of Chance”

§38:83 Motion to Set Aside Portions of Award

§38:84 Adjustments for Statutory Exemplary Damages

B. Adjustment for Collateral Source

§38:90 In General

§38:91 Collateral Source Hearing

§38:92 Collateral Source Hearing Waiver

§38:93 Collateral Source Discovery

§38:94 Types of Collateral Sources

§38:95 Collateral Sources for Damages Other Than Personal Injury

§38:96 Life Insurance Excluded

§38:97 Social Security

§38:98 Health Insurance

§38:99 No-Fault Benef‌its

§38:100 Pensions

V. DEFENDANTS’ LIABILITIES

§38:110 Motion to Resolve Party Relationships

§38:111 Proceeding to Apply CPLR 1411

§38:112 Proceeding to Apply GOL §15-108 and CPLR 4533-b

§38:113 Offsets Under GOL §15-108 for Successive Injuries

§38:114 Proceeding to Apply Both GOL §15-108 and CPLR 1411

§38:115 Proceeding to Apply CPLR Article 16

§38:116 Application of Indemnif‌ication or Contribution

§38:117 Proceeding to Correct Allocation of Damages

§38:118 Reduction for No Fault Benef‌its

POST-VERDICT

PROCEEDINGS

38-3 Post-Verdict Proceedings

VI. STRUCTURED JUDGMENTS

§38:130 In General

§38:131 Structured Judgments in Personal Injury, Property Damage and Wrongful Death Cases

§38:132 Structured Judgments in Medical, Dental and Podiatric Malpractice Cases

§38:133 Fashioning Structured Judgment Is Court’s Duty

§38:134 Structured Judgments Where Some Defendants Have Settled

§38:135 Objections to Structured Judgment Must Be Preserved

§38:136 Litigation Expenses and Attorneys’ Fees in Structured Judgments

VII. OTHER POSTVERDICT PROCEEDINGS

A. Interest

§38:150 Post-Trial Proceeding to Fix Pre-Judgment Interest

§38:151 Date From Which Interest Accrues

§38:152 Setting Interest Rate

§38:153 Setting Discount Rate

B. Attorneys ’ Fees

§38:160 Motion to Fix Attorneys’ Fees

§38:161 Determining Attorneys’ Fees in Personal Injury Actions

C. Integrity and Enforcement of Judgment

§38:170 Proceeding to Correct the Judgment

§38:171 Post-Trial Motion to Enforce Settlement

§38:172 Motion to Enforce Payment of Judgment

§38:173 Costs and Disbursements

§38:174 Proceeding to Set Aside Judgment

§38:175 Motion for Poundage

D. Other Proceedings

§38:180 Petition for Writ of Mandamus

§38:181 Post-Verdict Batson Hearing

§38:182 Post-Verdict Imposition of Sanctions

§38:183 Post-Verdict Hearing to Determine Allocation of Wrongful Death Damages

§38:184 Motion to Settle Trial Transcript

§38:185 Motion to Reform High-Low Agreement

§38:186 Motion to Set Aside Verdict After Non-Appearance at Trial

§38:187 Motion to Dismiss for Lack of Standing

§38:188 Proposed Findings of Fact and Conclusions of Law

§38:189 Hearing on Medicaid Liens—Allocation of Elements of Damages

§38:190 Where Proceeds Are Paid Into Court

§38:191 Collectability Hearing

§38:192 Proceedings Where There Have Been Offers to Compromise

§38:193 Proceedings To Compel Discovery in Enforcement of Money Judgments

§38:194 Motion Pursuant to CPLR 3123 (c) to Require Opposing

Party to Pay for Proof of Issues Unreasonably Denied

§38:195 Motions at Post-Trial Conferences

§38:196 Motion To Liquidate Appeal Bond