Post-Verdict Proceedings

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 579-690

POST-VERDICT

PROCEEDINGS

CHAPTER 38

POSTVERDICT

PROCEEDINGS

§38:01 New York Trial Notebook 38-2

POST-VERDICT

PROCEEDINGS

I. OVERVIEW

§38:01 In General

Delivery and entry of the verdict mark the end

of the trial. The trial court’s work, however, may

not be over. Certain procedures may be necessary

before entry of the final judgment. The parties

may move for post-verdict relief. In the event of

a verdict for plaintiff, various adjustments may

be required before a judgment in a dollar amount

can be entered. The trial court may be called

upon to resolve various issues, or even to revisit

a judgment rendered in an earlier proceeding.

Under extraordinary circumstances, an appellate

court may be called upon to give direction to the

trial court. [See §38:173.] All of this could happen

before there is a final judgment entered.

§38:02 CPLR Article 44

CPLR 4406 provides that in addition to motions

made orally immediately after decision, verdict

or discharge of the jury, there shall be only one

motion under that article, and each party shall raise

by motion or by demand under CPLR 2215 (relief

demanded by cross-motion) every ground for post-

trial relief then available to the party. Thus, the trial

judge has the opportunity to consider and decide all

requests for relief from a verdict in one proceeding.

It is not a bad idea to include as part of the motion

a request for an order pursuant to CPLR 2201,

staying entry of judgment or any enforcement

proceedings pending decision on the motion.

There is authority in the Third and Fourth

Departments that failure to raise, in a post-trial

motion, issues of inadequacy or excessiveness of

a verdict waives the issue on appeal. [Smetanick v.

Erie Insurance Group, 16 AD3d 957, 792 NYS2d

223 (3d Dept 2005); Diel v. Bryan, 71 AD3d 1439,

896 NYS2d 782 (4th Dept 2010).] See §§38:80, et.

seq., infra.

CPLR 4404 provides for a “post-trial motion

for judgment and new trial.” The motion for a new

trial following the verdict can be made on numerous

grounds. [See §38:30.] The “motion for judgment”

is perhaps better known to the bar as a motion for

judgment notwithstanding the verdict (or judgment

non obstante veredicto—motion for j.n.o.v.), where

the moving party asserts that it is entitled to

judgment as a matter of law, despite an adverse

verdict. [See §38:20.] CPLR 4404 also provides that

the court may set aside a verdict and enter judgment

or order a new trial on its own initiative.

CPLR 4404(a) pertains to motions after trial

where a jury was required, and specifies that

the trial court may upon motion, or on its own

initiative, set aside a verdict or judgment and direct

that judgment be entered in favor of any party as

a matter of law (see §38:20), or may order a new

trial where the verdict is contrary to the weight of

the evidence, in the interests of justice (see §38:30)

or where the jury cannot agree after being kept

together for as long as is deemed reasonable (see

Chapter 36, Mistrial). CPLR 4404(b) pertains to

motions after trial where a jury was not required,

and specifies that upon motion of any party or

on its own initiative, the trial court may set aside

its decision or any judgment entered thereon, and

may make new findings of fact or conclusions of

law, with or without taking additional testimony,

render a new decision and direct entry of judgment,

or may order a new trial of a cause of action or

separable issue.

§38:03 Power to Relieve Party From

Judgment

CPLR 5015(a) provides that an interested party

may be relieved from a judgment upon motion on

the basis of certain stated grounds, namely, newly

discovered evidence and fraud, misrepresentation

or other misconduct of an adverse party. These

grounds are treated in §38:70 ff.

The enumerated grounds in CPLR 5015 are

neither pre-emptive nor exhaustive and were not

intended to limit a court’s inherent power. [St.

Luke’s Hospital Center v. H.R. Controls, Inc.,

NYLJ 8-29-97, p. 21, col. 5 (Sup Ct NY County

1997); Government Employees Insurance Co. v.

Employers Commercial Union Insurance Co., 62

AD2d 123, 404 NYS2d 652 (2d Dept 1978)

(grounds enumerated in CPLR 5015(a) were not

intended to limit traditional powers of court to

grant relief from order or judgment in interests of

justice and exercise of its discretion).]

However, “there is no hard-and-fast rule for

the granting of new trials in the interests of

justice. When the attack is collateral, long-delayed,

or merely reflects a disappointed or ill-prepared

38-3 Post-Verdict Proceedings §38:05

POST-VERDICT

PROCEEDINGS

litigant’s second thoughts, a new trial is always

denied.” [McCarthy v. Port of New York Authority,

21 AD2d 125, 129, 248 NYS2d 713, 717 (1st

Dept 1964).] And, “although it is well established

that ‘the grounds for vacatur delineated in CPLR

5015(1) are not exclusive, and the [court] has

the inherent authority to vacate its own order for

sufficient reason, in furtherance of justice’ [cites

omitted], that inherent authority is not unlimited.

‘A court’s power to exercise control over its

judgments is not plenary, and should be resorted

to only to relieve a party from judgments taken

through [fraud,] mistake, inadvertence, surprise or

excusable neglect.’” [Quinn v. Guerra, 26 AD3d

872, 872, 811 NYS2d 238, 239 (4th Dept 2006);

see McKenna v. County of Nassau, 61 NY2d 739,

742, 472 NYS2d 913, 914 (1984).]

§38:04 Harmless Error

CPLR 2002 states that an error in a ruling of

the court shall be disregarded if a substantial right

of a party is not prejudiced. Thus, if an error by the

trial court would not have likely led to a different

result because the error was “harmless,” a new trial

is not required. [See, e.g., Liquori v. Hollymatic

Corp., 230 AD2d 893, 646 NYS2d 886 (2d Dept

1996) (products liability action, certain evidence

of feasibility was excluded; but where there was

other overwhelming evidence of feasibility, there

was no likelihood that excluded evidence would

have affected jury’s findings, new trial was not

required); Khan v. Galvin, 206 AD2d 776, 777, 615

NYS2d 111, 112 (3d Dept 1994) (held erroneous

exclusion of defendant’s statement to refresh her

recollection was harmless, reversal is required only

when excluded matter would have had substantial

influence in bringing about different verdict).]

NOTE:

Minor issues can add up. In LaPenta v.

Loca-Bik Ltee Transport, 238 AD2d 913,

914, 661 NYS2d 132, 132 (4th Dept 1997),

the Fourth Department identified three

evidentiary errors, and said “[a]lthough,

standing alone, each error may have been

harmless ... , we conclude that the cumulative

effect of the errors substantially impaired

[plaintiffs’] rights, requiring a new trial.”

§38:05 Timing

CPLR 4405 states that a motion must be made

within 15 days after decision, verdict or discharge

of the jury. While the 15-day period sounds

absolute, the courts have “not seen fit to construe

the time limitation of CPLR 4405 strictly” [Pioli

v. Morgan Guaranty Trust Co. of New York, 199

AD2d 144, 148, 605 NYS2d 254, 257 (1st Dept

1993) (Supreme Court did not abuse its discretion

in declining to entertain motion made nearly 18

months after verdict)], if the movant “can establish

‘good cause’ for the delay.” [Casey v. Slattery, 213

AD2d 890, 891, 623 NYS2d 942, 943 (3d Dept

1995) (however, in this case, Supreme Court abused

its discretion in entertaining plaintiff’s motion

after “substantial” four-month delay without any

explanation).] If the delay is not unreasonable, the

courts may be lenient. [E.g., Johnson v. Suffolk

County Police Dept., 245 AD2d 340, 665 NYS2d

440 (2d Dept 1997) (claim of untimeliness without

merit, as plaintiff established “good cause” for

her three-day delay in making motion); Brown v.

Two Exchange Plaza Partners, 146 AD2d 129,

539 NYS2d 889 (1st Dept 1989) (defendant’s

post-trial motion for judgment as matter of law

was not untimely; “no time limit on the motion

was set by the court even when [the defendant]

asked it to do so, and ... no party suffered prejudice

as a result of the delay in presenting to the court

written argument invited by the court”), aff’d 76

NY2d 172, 556 NYS2d 991 (1990); City of Albany

Industrial Development Agency v. Garg, 250 AD2d

991, 672 NYS2d 541 (3d Dept 1998) (law imputes

reasonable time limitation in which to bring actions

under CPLR 5102(a)(2) and (3), motion filed two

years after order with no excuse for delay was

untimely); see Acovangelo v. Brundage, 271 AD2d

885, 706 NYS2d 757 (3d Dept 2000) (plaintiff

abandoned his oral motion to set aside verdict

as against weight of evidence, and agreed as

suggested by trial court to submit motion within

15 days, no such motion was submitted, so that

issue was not properly before Appellate Division);

Gamell v. Mt. Sinai Hospital, 40 AD2d 1010,

339 NYS2d 31 (2d Dept 1972) (verdict in favor

of plaintiff against defendant hospital MS, but in

favor of defendant Dr. R; in prior appeal, affirmed

as to R but granted new trial as to MS; plaintiff then

moved for new trial on ground that certain jurors