Michael A. Bottar, Post-Trial Practice in New York State Courts: Procedure and Pitfalls

Post-Trial Practice In
New York State Courts:

Procedure and Pitfalls
Michael A. Bottar, Esq.

Bottar Leone, PLLC
1600 AXA Tower II
120 Madison Street
Syracuse, NY 13202
T: (315) 422 3466
F: (315) 422 4621
mbottar@bottarleone.com
www.bottarleone.com
In and For Ups tate New York . Since 1983.
Post-Trial Practice In New York State Courts: Procedure and Pitfalls
P a g e |1
NB: Nota Bene

This is a survey of New York case law. It is intended to provide only a starting
point for the Bar. Whether by accident or design, case law cited in the materials is not
exhaustive. There may be minority or contrary case law on any given point.
Questions, comments, or concerns, as well as requests for reproduction, should
be submitted to the author by email at mbottar@bottarleone.com.
2013 Michael Anthony Bottar, Esq. Bottar Leone, PLLC 1600 AXA Tower II 120 Madison St. Syracuse, NY 13202 (315) 422-3466 bottarleone.com
P a g e |2
TABLE OF CONTENTS
I.
Introduction
II.
Format of the Verdict
A. General Verdict
B. General Verdict With Answers To Written Interrogatories
C. Special Verdict
3
4
7
III.
Polling the Jury
IV.
Defective Verdicts
16
A. Timing for Challenge

a. Before Discharge
b. Utility of Juror Affidavits
16
16
16
B. Identifying Defects
a. Incomplete or Inaccurate Verdicts
b. Inconsistent Verdicts
c. Compromise Verdicts
d. Quotient Verdicts
20
20
23
27
31
Challenging the Verdict In Post-Trial Motions
32
A.
B.
C.
D.
32
34
36
36
36
38
38
38
40
40
41
44
48
49
51
52
V.
Generally
Timing
Form
Grounds
a. Contrary to Law or Against Weight of Evidence
b. Interests of Justice
1. Voir Dire
2. Continuance
3. Excessive/Inadequate Verdict
4. Mistakes and Misconduct
a. Counsel
b. Court
c. Party
d. Juror
5. False Testimony and Perjury
6. Surprise During Trial
Appendix
53
The Author
67
I.
P a g e |3
INTRODUCTION
Many practitioners believe that its the jurys job to get the verdict right.
Theoretically, this is true. However, practically speaking, it is the job of the court and
trial counsel to ensure that a jury has, before discharge, properly analyzed and correctly
delivered a verdict.
Despite pattern jury instructions, court rules, and various
worksheets, deliberations can go awry in a number of ways, many of which are

discussed, infra.
II.
FORMAT OF THE VERDICT

Many of the mechanics of a jury trial are governed by CPLR Article 41, including
e.g., issues triable, the number of jurors, alternates, juror qualifications, challenges,
instructions on the law, entry of a verdict, and procedure when jurors disagree. In
addition to these nuts-and-bolts guidelines, CPLR 4111 provides guidance with respect
to general verdicts, special verdicts, and interrogatories.
A. General Verdict
A general verdict is one in which the jury finds in favor of one or more of the
parties. N.Y.C.P.L.R. 4111(a). In common parlance, this is the verdict where the jury
finds for the plaintiff or finds for the defendant. 1 A general verdict is not ideal for
complicated cases. See Bolm v. Triumph Corp., 58 A.D.2d 1014 (4th Dept. 1977)
(ordering new trial and directing that interrogatories be used to spell out the elements of
1
See New York PJI 1:95, GENERAL VERDICT, which provides:

In reporting your verdict to the court, you will state either that it is in favor
of the defendant or that it is in favor of the plaintiff. If your verdict is in
favor of the plaintiff, you will state the amount you award to the plaintiff.
An exemplar general verdict sheet is set forth in the Appendix at page 54.
P a g e |4
the various causes of action and asking the jury to make specific findings with respect to
each).
B. General Verdict With Written Answers To Interrogatories
A general verdict with written interrogatories is a hybrid. 2 It asks the jury to find
for one side or the other and, separately, asks the jury to answer questions so that the
court and parties have more information about how or why the jury arrived at its
conclusion.
The trial court has authority to submit written interrogatories to a jury. See, e.g.,
Marine Midland Bank v. John E. Russo Produce Co., Inc., 50 N.Y.2d 31, 40 (1980)
(condoning the submission of 12 interrogatories to the jury in case involving bank fraud);
National Equipment Corp. v. Ruiz, 19 A.D.3d 5 (1st Dept. 2005) (proper for jury to
answer interrogatories); Martelly v. New York City Health and Hospitals Corp., 276
A.D.2d 373 (1st Dept. 2000) (general interrogatory on liability followed by six more
specific interrogatories addressing theories of liability acceptable in medical malpractice
lawsuit). Written interrogatories are a technique especially well-suited to cases with
multiple parties and legal theories. Id., citing Dore v. Long Island R.R. Co., 23 A.D.2d
502 (2d Dept. 1965).
If the jury is asked to return a general verdict with answers to interrogatories, it is
critical that the court provide adequate instructions for the jury to render a general
verdict and answer interrogatories. To put it another way, the jury cannot be left without
guidance about how to answer the questions.
Also, when wording interrogatories,
An exemplar general verdict sheet with interrogatories is set forth in the Appendix at
pages 55-56.
P a g e |5
courts must be careful to ensure that the jury is not given the impression that it must
reach a particular conclusion. See Miocic v. Winters, 66 A.D.2d 770 (2d Dept. 1978)
(new trial because court failed to amplify its charge so as to negate the concept that if
the distance from the guardrail to the curb was wide enough to walk on, the plaintiff was
guilty of contributory negligence).
In most cases, the hybrid course proceeds without issue. That is, jurors say
yay or nay about liability and check yes, no, or otherwise respond to simple
questions about, e.g., which defendant is liable, or under what theory of liability the
plaintiff should recover. See, e.g., Lunn v. Nassau County, 115 A.D.2d 457 (2d Dept.
1985); Radtke v. Yokose, 87 A.d.2D 220 (3d Dept. 1982); Hagler v. Consolidated
Edison Co. of New York, Inc., 99 A.D.2d 725 (1st Dept. 1984).
However, juries occasionally answer the general verdict question in a manner
inconsistent with how they answered the interrogatory questions. When this happens, a
court must analyze the interrogatory answers for internal consistency.
If the
interrogatory answers are consistent with each other, then the court shall (1) direct the
entry of judgment in accordance with the answers, notwithstanding the general verdict,
or it (2) require the jury to further consider its answers and verdict, or (3) order a new
trial. N.Y.C.P.L.R. 4111(c). If the interrogatory answers are not consistent with each
other, the Court shall (1) require the jury to further consider its answers and verdict, or
(2) order a new trial. Id.
P a g e |6
The manner in which a jury answered interrogatories was at issue in Marine

Midland Bank v. Russo Produce Co., 50 N.Y.2d 31 (1980). The plaintiff in Marine
Midland filed suit to impose liability on two corporate customers for fraud and
conversion from check kiting. 3 As part of deliberations, the jury was asked to return a
general verdict and to answer twelve interrogatories.
Interrogatories 1-10 spoke to
which defendants were liable. Interrogatories 11 and 12 addressed the dollar amount of
the banks loss and whether the banks losses had already been satisfied by a demand
note. The jury answered 1-10 in the negative meaning the defendants were not liable.
It then wrote $309,800 for interrogatory 11. Interrogatory 12 went unanswered. The
clerk never asked whether the jury had reached a general verdict. Before the jury was
discharged, the bank argued that the answers to 1-10 were inconsistent with 11. While
the bank did not object to discharging the jury, it moved to set aside the verdict on the
grounds that the interrogatory answers were inconsistent with one another. Two days
later the bank also argued that the jury should have been asked to clarify its answers
and that the absence of a general verdict was a fatal defect. The trial judge denied the
banks motion(s). The appellate division reversed in part and affirmed in part. See
Marine Midland Bank v. Russo Produce Co., 65 A.D.2d 950 (4th Dept. 1978). The
Court of Appeals held that the jurys failure to report a general verdict was not fatal as
the court may prefer the specific over the general by entering judgment in accordance
with the answers the interrogatories has induced. Marine Midland, 50 N.Y.2d at 41.
A practice where checks are drawn against deposits which have not been cleared
through the bank collection process.
P a g e |7
The Court also noted that the bank waived its objections by failing to press them when
it would have been possible to prevent or correct the error. Id.
The Court of Appeals held that the jurys failure to report a general verdict along
with answers was not fatal to the verdict as a court is permitted to prefer the specific
over the general.
C. Special Verdict
A special verdict is one in which the jury finds the facts only, leaving the court to
determine which party is entitled to judgment thereon. N.Y.C.P.L.R. 4111(a). 4
III.
Polling The Jury

A jury may deliver its verdict orally or in writing. Customarily, the writing is signed
by the jurors and returned in a sealed envelope which may, or may not, contain a
verdict worksheet.
It is well-settled that parties have an absolute right to poll the jury after learning of
its decision. The reasoning behind the right to poll the jury stems from the possibility
that a juror was coerced into the majority, or changed his or her mind between the time
4
See New York PJI 1:97, GENERAL INSTRUCTION SPECIAL VERDICTS, which provides:
This case will be decided on the basis of the answers that you give to
certain question that will be submitted to you. Each of the questions
asked called for [Insert appropriate phrase, such as (a Yes or No
answer), (some numerical figure), (some percentage), etc.]. While it is
important that the views of all jurors be considered, five of the six of you
must agree on the answer to any question, but the same five persons
need not agree on all of the answers. When five of you have agreed on
any answer, the foreperson of the jury will write the answer in the space
provided for each answer and each juror will sign in the appropriate place
to indicate (his, her) agreement or disagreement.
An exemplar special verdict sheet is set forth in the Appendix at pages 57-66.
P a g e |8
that deliberations end and when the verdict is reported. Simply stated, a verdict may
not be deemed finished or perfected until it is recorded, and there is no recording
without a jury poll where one has been requested. See Warner v. New York Central, 52
N.Y.437 (1873).
The right to poll the jury exists despite the availability of a signed and sealed
verdict sheet.
To put it another way, 5 or 6 signatures on a verdict sheet are no
substitute for the opportunity to have each juror announce in open court his or her
position. See Dore v. Wyer, 1 A.D.2d 973 (2d Dept. 1956) (even though ten jurors had
signed verdict sheet, which was unanimous, it was an error for the trial court to deny
plaintiffs polling request as unnecessary because her right was absolute).
While a party has the right to poll the jury, it is a somewhat unpopular practice at
the conclusion of a trial and, likely due to exhaustion or frustration, a request to poll may
be mishandled by counsel, the court, and/or both. Where counsel: (1) does not ask to
poll the jury, (2) declines the courts invitation to poll the jury, (3) yields without objection
to pressure from the court to skip the exercise, or (4) withdraws a request to poll, the
verdict will be recorded and any issues relating to polling are unpreserved for appellate
review. See, e.g., Farhart v. Matuljak, 283 A.D.977 (3d Dept. 1954) (After hearing the
verdict counsel asked to poll jury.
In response, the trial court stated well, it is a
unanimous verdict, and counsel did not press the matter further. On appeal, the Third
Department stated we do not think that counsel made his position sufficiently clear to
the court to make the question available upon appeal. The trial court did not deny his
request. No ruling was made at all. The court merely made a comment, and when
counsel immediately abandoned the subject the court might well have assumed that
P a g e |9
counsel acquiesced that the polling was unnecessary. With complete propriety counsel
might well have stated that nevertheless he wished the jury polled, or asked for a
definite ruling. When he did not do so we do not think there was a refusal to have the
jury polled which constitutes error on appeal).
Recently, the issue of polling made its way to the Court of Appeals in Holstein v.
Community General Hospital of Greater Syracuse, see 20 N.Y.3d 892 (2012). At the
trial level, the jury returned a verdict for the plaintiff in a medical malpractice action.
Counsel for the defendant ask[ed] that the jury be polled and the Court responded
Jury be polled, they have signed. They each have individually signed. 86 A.D.3d 911,
912 (4th Dept. 2011). Defense counsel then stated Okay. All right. Thank you. Id.
Thereafter, the jury was excused. Id. On appeal, the defendant argued that the Court
has violated its right to poll the jury. Id. The Fourth Department held that defense
counsel was afforded an opportunity to clarify her request prior to the jury being
discharged and when defense counsel immediately abandoned the subject, the court
might well have assumed that defense counsel acquiesced that the polling was
unnecessary. Id., quoting Farhart v. Matuljak, 283 App.Div.977, 978 (3d Dept. 1954)
(internal quotations omitted). As defense counsel did not make her position sufficiently
clear to the court to make the question available on appeal, the verdict was affirmed.
Id. 5 The Court of Appeals agreed, stating that it was not unreasonable for the trial
A dissent authored by Presiding Justice Scudder and Justice Mortoche noted that a
new trial was necessary because there was no question that defense counsel
unequivocally requested that the jury be polled and there was no reason for defense
counsel to make a formal exception to the ruling of the court. Further, the dissent
noted that [a]ny ambiguity in the courts response should not be held against defense
counsel.
P a g e | 10
court to conclude that the request had been withdrawn or waived in light of the nature of
counsels response to the judges inquiry. Holstein, 20 N.Y.3d at 893.
Another recent Court of Appeals decision also addressed jury polling. See Duffy
v. Vogel, 12 N.Y.3d 169 (2009).
At the trial level, the jury concluded that neither
defendant was liable to the plaintiff for medical malpractice; however, two non-party
physicians were liable for damages in the amount of $1,500,000. 49 A.D.3d 22, 23 (1st
Dept. 2007). As part of deliberations, the jury was asked to answer 21 interrogatories.
The first 10 questions dealt with the defendants liability, if any. The next 5 questions
dealt with the non-party physicians liability, if any. The next 2 questions dealt with the
plaintiffs responsibility, and the remaining 3 questions asked the jury to allocate
responsibility between the individuals named at trial and award damages.
Even though the jury should have stopped after it concluded that the named
defendants were not liable, it continued to answer questions with respect to the nonparty physicians, divided liability between them 60/40, and awarded damages. The
attentive plaintiffs attorney suspected that the verdict was inconsistent and that the jury
was confused. His request for clarifying instructions and time for further deliberations
was denied. Correctly seeking to develop a record of juror confusion, he then asked
that the jury be polled.
The request was denied and the jury was discharged.
Subsequently, the trial court set aside the verdict on the grounds that it had committed
reversible error by failing to poll the jury.
P a g e | 11
On appeal, the First Department applied a prejudice analysis, reversed the trial
court and reinstated the verdict. After acknowledging that the plaintiff had an absolute
right to poll the jury, it reasoned that the plaintiff had not been harmed because the
verdict was announced in open court and, as part of that process, the clerk posed 16
questions to the foreperson which were answered and reported as unanimous Further,
[a]t no time while this verdict was being delivered did any member of the jury give any
indication that he or she had an exception, objection nor reservation as to any of the
answers given by the foreperson to any of the interrogatories on the verdict sheet.
The Court of Appeals reversed the appellate court, stating that proper
publication of a verdict in open court . . .is not to be cast aside as a mere formality on
the theory that jurors are prospectively bound to act in accordance with their verdict
sheet signatures. The Court also stated we do not think it sensible to expect that a
juror would in open court spontaneously pipe up his or her disagreement with an
announced verdict. Jurors who have been pushed to a verdict about which they have
serious reservations are not likely moments later in the solemn and intimidating
atmosphere of the courtroom attending the announcement of the verdict to feel free to
express their reservations unless it is made clear that it is permissible to do so and an
opportunity is provided.
Is this your verdict? This is customary language employed by a clerk when
polling a jury. In fact, this may be the only proper question when polling. See Labar v.
Koplin, 4 N.Y. 547 (1851) (a party has no right to insist on any question being put to
jurors other than Is this your verdict?). Even so, polling is often conducted in different
ways and by different people without incident. See, e.g., Sharrow v. Dick Corp., 86
P a g e | 12
N.Y.2d 54 (1995) (polling acceptable where clerk departed from usual procedure and
conducted the poll by reading each question on the verdict sheet and then asking each
juror in turn his or her verdict on the question); Lopez v. Kenmore-Tonawanda School
Dist., 275 A.D.2d 894 (4th Dept. 2000) (acceptable where court asked is this verdict in
all respects your verdict? and each juror replied in the affirmative).
If counsel does do not object to the manner in which the jury is polled, the right to
challenge the method is unpreserved for appellate review. See e.g., Rokitka v. Barrett,
303 A.D.2d 983 (4th Dept. 2003) ([b]y failing to object to the procedure chosen by the
court for polling the jury, defendant failed to preserve for our review his contention that
the procedure was improper).
The purpose of polling is to make sure each juror has had an opportunity to
participate in deliberations and agrees with the verdict. Periodically, polling the jury
uncovers an issue in the jury room revealed through an unorthodox answer. When an
issue is uncovered, the Court likely has a duty to conduct a limited inquiry to inquire into
the jurors answer. 6
See generally N.Y. C.P.L. 310.80, which provides:

After a verdict has been rendered, it must be recorded on the minutes and
read to the jury, and the jurors must be collectively asked whether such is
their verdict. Even though no juror makes any declaration in the negative,
the jury must, if either party makes such an application, be polled and
each juror separately asked whether the verdict announced by the
foreman is in all respects his verdict. If upon either the collective or the
separate inquiry any juror answers in the negative, the court must refuse
to accept the verdict and must direct the jury to resume its deliberation. If
no disagreement is expressed, the jury must be discharged from the case,
except as otherwise provided in section 400.27.
P a g e | 13
A jurors response or non-response was at issue in Sharrow v. Dick Corp., 86

N.Y.2d 54 (1965). The plaintiff in Sharrow filed suit for injuries sustained while using a
Genie hoist to move a metal lockbox at a construction site. At the conclusion of
deliberations, the foreperson announced that five members of the jury had agreed to a
verdict for the plaintiff in the amount of $430,000. Defense counsel asked for the jury to
be polled. When Juror No. 5 was asked whether there was a violation of the Labor
Law for which the defendants were liable, she answered no. When Juror No. 5 was
asked whether the Labor Law violation was a proximate cause of plaintiffs injuries, the
following dialogue occurred:
Juror No. 5: I have no--.
Clerk: Your verdict is no?
Court: Well, she didnt make a determination because she didnt move on.
When the polling returned to Juror No. 5 on damages, the following dialogue occurred:
Clerk: Number 5? No response?
Juror No. 5: No.
Juror No. 5s response to the remaining three questions was [n]o response. At the
conclusion of polling, counsel for the defendant argued that the verdict was inconsistent.
He also argued that it appears that Juror No. 5 did not participate in deliberations on
any issue other than liability. Defense counsel asked the court to conduct a limited
inquiry into Juror No. 5s participation during deliberations. The trial court denied the
request.
P a g e | 14
The Appellate Division held that there was no evidence that the defendant had
been deprived of the constitutional right to trial by six jurors. 7 Two dissenters stated
that the court should have conducted investigated the extent of Juror No. 5s
participation. The Court of Appeals agreed, stating that the trial court erred in refusing
to conduct a limited inquiry to determine whether juror No. 5 participated in the verdict
process, an error that implicates the constitutional right to a trial by a six-member jury
and mandates a new trial. 86 N.Y.2d at 59.
A proper inquiry from the court should lead to necessary clarification of the jurors
answer. The verdict is not invalid where the jurors answer, following inquiry, is different
than the original answer. See Bernard v. Seyopp Corp., 11 A.D.2d 140 (1st Dept.
1960), affd 9 N.Y.2d 676 (1961).
In Bernard, a verdict was announced by the
foreperson and the jury was polled.
Juror No. 12 stated that the foremans
announcement did not represent his verdict. Following a colloquy with the juror, the
court learned that Juror No. 12 was in favor of a recovery for the plaintiff, but that he
was not in accord with the amount. However, he was agreeable to the amount. The
Court ordered the jury to deliberate further and the damage award was confirmed.
Counsel did not object to the courts colloquy or additional time for deliberations. The
verdict was affirmed.
7
See also Arizmendi v. City of New York, 56 N.Y.2d 753 (1982) (Appellants contend
that they were effectively deprived of their constitutional guarantee of a jury of six
persons when after a poll a juror revealed that he neither deliberated nor voted on the
issue of damages because he was the sole dissenter on the issue of liability. Appellants
first raised this claim, however, in connection with a post-trial motion to set aside the
verdict. In that appellants failed to raise this objection before the jury was discharged
and thereby afforded the trial court no opportunity to correct the claimed error by
returning the jury for additional deliberation on the issue of damages, appellants have
waived their objection to the juror's nonparticipation in deliberations or voting on that
issue.)
P a g e | 15
Juror polling answers were recently at issue in People v. Simms. 13 N.Y.3d 867
(2009). During jury polling to confirm a guilty verdict, nine jurors answered yes before
Juror No. 10 answered [w]ell it is my verdict, although I feel like I was pressured to
make that decision and [i]t is my verdict. The trial judge interjected [t]hat is your
verdict; is that correct? and the juror replied yes. The remaining two jurors then
answered yes. The trial judge then spoke with Juror No. 10 outside the presence of
the other jurors to find out more about the pressure. The juror eventually answered
[w]ell, I believe that it was pure chaos in there. Everyone was speaking at the same
time. Also, I meant pressured by the fact that everyone is standing up, yelling at me,
why cant you see it that way, why cant you see it that way? Everyone is yelling like
that. After eight hours of that you have to give in. Defense counsel sought a mistrial.
The Court accepted the guilty verdict and the jury was discharged.
On appeal, the Second Department reversed and ordered a new trial. The Court
of Appeals affirmed reversal, stating that [w]hile the trial judge established that there
was no pressure exerted on juror number 10 emanating from outside the jury room, he
did not clear up whether there was duress arising out of matters extraneous to the
jurys deliberations or not properly within their scope, although perhaps occurring with
the jury room. Moreover, the trial judge never dispelled the ambiguity created by juror
number 10s multiple responses during the jury poll by simply asking her, for example,
whether she found defendant guilty . . . based on the evidence. 8
A dissent authored by Justice Smith noted that the juror had not been coerced
because she has not been subjected to a threat of physical harm and, therefore, her
views had not been coerced with sufficient force to justify a new trial.
IV.
P a g e | 16
Defective Verdicts
A. Timing for Challenge
a. Before Discharge
A verdict is not final until the jurors are discharged. Therefore, the time to identify
and attempt to correct a defective verdict is when the jurors are still captive. After the
jury has been released, it is all but impossible to recall the jury to deliberate further
about the trial. See, e.g., Moisakis v. Allied, 265 A.D.2d 457 (2d Dept. 1999), lv. denied,
95 N.Y.2d 752 (2000) (after a verdict had been accepted and the jury discharged, the
trial court recalled the jurors a week later and questioned them about possible juror
confusion, a procedure the Second Department described as totally unauthorized);
Laylon v. Shaver, 187 A.D.2d 983 (4th Dept. 1992) (trial court, which recalled the jurors
after discharge in order to have them testify about the amount of damages they had
intended to award, and then amended the announced verdict to reflect that amount,
erred and should not have allowed the jury to impeach its verdict).
b. Utility of Juror Affidavits
Generally, a post mortem affidavit from a juror is not a proper vehicle to impeach
a verdict. See, e.g., Moisakis v. Allied Building Products Corp., 265 A.D.2d 457 (2d
Dept. 1999) (problems with permitting such a procedure are apparent here. After the
jurors were discharged, they received extrajudicial communications from counsel for the
parties, and therefore were exposed to outside influences of the most prejudicial sort.
They then had the entire weekend to rehash the deliberations and formulate second
thoughts.). This rule exists to to ensure the finality of verdicts, prevent the harassment
of jurors and [to] protect the integrity of the deliberation process . . . . Capital Med. Sys.
P a g e | 17
v. Fuji Med. Sys., U.S.A., 270 A.D.2d 728, 730 (3d Dept. 2000), lv. dismissed and
denied, 95 N.Y.2d 820 (2000).
However, in rare circumstances, a verdict may be clarified after discharge
through the introduction of juror affidavits. Generally, this exception to the rule applies
only where there: (1) is a ministerial or clerical error in reporting the verdict, or (2) is
evidence in the record of substantial confusion among the jurors. See, e.g., Shumway
v. Kelley, 109 A.D.3d 1092 (4th Dept. 2013) (no evidence of clerical error or confusion);
Selzer v. New York City Tr. Auth., 100 A.D.3d 157 (1st Dept. 2012) (no need to consider
juror affidavits because there was no evidence that verdict was nonsensical); Smith v.
Field, 302 A.D.2d 585 (2d Dept. 2003) (trial court properly considered juror affidavits
that spoke to amount jury intended to award for 20 years because there was an error in
reporting and recording the actual verdict); Hersh v. New York City Tr. Auth., 290
A.D.2d 258 (1st Dept. 2002) (even without considering the jurors letters and affidavit,
the verdict sheet and court instructions were confusing with respect to apportionment of
damages and, therefore, a new trial was proper); Hoffman v. Domenico Bus Serv., 183
A.D.2d 807 (2d Dept. 1992) (declining to consider 5 juror affidavits spelling out
confusion, but setting aside verdict because the jury did not receive proper instruction to
disregard liability verdict when calculating the amount of damages to award the plaintiff);
Lustyik v. Manaher, 246 A.D.2d 887 (3d Dept. 1998) (no basis to consider juror
affidavits because a misunderstanding related to what monetary amount is referenced
by total damages on the jury verdict does not amount to a clerical or ministerial
mistake that would permit amendment of judgment); Rose v. Thau, 45 A.D.2d 182 (3d
Dept. 1974) (juror affidavits could be used to establish that the jury entered percentages
of faulty on the wrong lines).
P a g e | 18
Courts reason that correcting the verdict is not
impeachment rather, correction involves making sure a mistake does not prevent the
jurys intended finding from being carried out. See Dalrymple v. William, 63 N.Y. 361
(1875).
Where an attorney seeks to remedy a clerical error, she likely needs evidence
from all of the members of the jury, i.e., an affidavit from each member of the jury about
how the panels verdict did not operate as intended. See, e.g., Herbst v. Marshall, 89
A.D.3d 1403 (4th Dept. 2011) (court erred by relying upon statement allegedly made by
jury foreperson in support of decision to set aside the verdict because statement was
brought to the courts attention by hearsay statement of plaintiffs attorney and not
through a juror affidavit); Capital Med. Sys., supra (rejecting post-trial attack on verdict
where the allegations set forth in the juror affidavit submitted by plaintiff were
completely refuted by affidavits of the foreperson and three other jurors and two
alternates); Grant v. Endy, 167 A.D.2d 807 (3d Dept. 1990) (juror affidavits may not be
considered because the jurors are not unanimous in the challenge); Wylder v. Viccari,
138 A.D.2d 482 (2d Dept. 1988) (under certain circumstances unanimous post-trial
juror affidavits may be used to correct error in reporting verdict).
The Fourth Department recently addressed the mechanics of post-trial verdict
clarification in Butterfield v. Caputo, 108 A.D.3d 1162 (4th Dept. 2013). The plaintiff in
Butterfield filed suit for medical malpractice. The jury returned a verdict for the plaintiff
that appeared to award her $60,000 over a 30 year period, i.e., $2,000.00 per year.
While plaintiffs counsel did not seek clarification of this component of the damage
award before discharge, he did move to set it aside in his post-trial motion. Thereafter,
P a g e | 19
plaintiffs counsel submitted a supplemental motion to correct the verdict. As part of

the supplemental motion, plaintiffs counsel submitted affidavits from all six jurors who
stated that they understood and agreed that the plaintiff would receive $60,000 per year
for 30 years. This clarification stood to increase the verdict by $1,800,000. The trial
court agreed and corrected the verdict. The Fourth Department affirmed. 9
A similar result was reached in Porter v. Milhorat. 26 A.D.3d 424 (2d Dept.
2006). The plaintiff in Porter filed suit for medical malpractice. The jury returned a
verdict for the plaintiff; however, there were issues with the verdict sheet.
After
concluding that the physicians negligence was a proximate cause of the plaintiffs
shoulder injury, it awarded no past damages and $720,000 for future damages (even
though the verdict sheet instructed the jury to stop if they awarded no past damages).
The trial court directed the jury to complete the sheet again. The second time, the jury
awarded no past damages and stopped (as instructed).
As the jury was being
discharged, the foreman questioned the trial court about the remaining (blank) pages of
the verdict sheet. After trial, the plaintiffs attorney secured juror affidavits stating that
The backstory is fleshed out in a dissent penned by Justice Fahey. The verdict was
returned on January 20, 2012. A scheduling order required that post-trial motions be
filed by February 21, 2012. Both sides filed motions before the deadline. On March 3,
2012, while the post-trial motions were pending, the plaintiffs attorney attended a
college basketball game at the Carrier Dome in Syracuse and, while there, was
approached by the jury foreperson. Apparently, the plaintiffs attorney and foreperson
agreed to speak about the verdict in greater detail at a more appropriate time and
location. The two eventually spoke by telephone on March 8, 2012 and, during that call,
the plaintiffs attorney learned that the jury had intended to award $60,000 a year not
$60,000 in total. The plaintiffs attorney was then granted permission to submit a
supplemental motion. Justice Fahey concluded that the jurys confusion with respect
to gross versus net damages was not a ministerial error and, therefore, could not be
corrected with juror affidavits.
P a g e | 20
the jury was confused during deliberations, and that they intended to award the plaintiff
$720,000 for past and future damages. A new trial was ordered.
B. Identifying Defects
There is limited time between the delivery of a jury verdict and juror discharge.
Consequently, attorneys must know how to quickly identify defects in the verdict and
must know what to say and when. 10 The failure to act may result in waiver of issues in
post-trial papers as well as on appeal.
a. Incomplete or Inaccurate Verdicts
A verdict may be incomplete or inaccurate in a constellation of ways, e.g., where
a jury finds that the defendant deviated from the standard of care but leaves blank a
question about proximate cause, where a jury concludes that all defendants are liable
but fails to apportion fault between them, or where a jury concludes that a defendant is
liable but fails to record a damage figure.
10
See New York PJI 1:102, GENERAL INSTRUCTION SUPPLEMENTAL CHARGE TO

CORRECT DEFECTIVE VERDICT, which provides:
Members of the jury, your verdict in this case does not (clearly, fully)
decide all of the issue submitted to you. I, therefore, ask you to return to
the jury room and consider the matter further. Under the law applicable to
this case, plaintiff must show that [concisely restate the basic charge,
pointing out the inconsistency or lack of clarity in the answers given by the
jury]. With that in mind, I ask you now to deliberate further to reconsider
[the answer to questions ___ (or other problem)] and to answer those
questions in accordance with my instructions.
P a g e | 21
A verdict is not invalid just because it is incomplete. See Schnarch v. Owen, 124
A.D.2d 372 (3d Dept. 1986) (directing jury to deliberate further on unanswered fifth
interrogatory overlooked because it was placed on a separate sheet).
Instead, an
incomplete verdict should be identified by counsel, discussed with the court, and
corrected through instruction 11 followed by additional deliberations. See, e.g., Boothe v.
Manhattan, 68 A.D.3d 513 (1st Dept. 2009) (where jury failed to answer two
interrogatories in support of general verdict, court erred by directing jury to complete
the verdict sheet without informing counsel of the specific omissions and offering them
an opportunity to be heard).
An example of an incomplete verdict can be found in Ricchueto v. County of
Monroe, 267 A.D.2d 1012 (4th Dept. 1999).
From the limited record available, it
appears that the jury became deadlocked during deliberations and was discharged. At
the time of discharge, the jury delivered a special verdict questionnaire to the court.
The questionnaire revealed: (1) that five of the six jurors agreed that the defendant was
negligent, and that the negligence was a proximate cause of the accident; (2) that six of
six jurors agreed that the plaintiff was also negligent; (3) that five of six jurors agreed
that the plaintiff and defendant were each 50% at fault. Only the issue of damages was
undecided. Counsel for the plaintiff argued in post-trial papers that he was entitled to
judgment on liability and a new trial on damage. The trial court disagreed and the
appellate division affirmed, noting that [t]he jury did not announce its verdict in open
court, members of the jury were not polled, and plaintiff has not shown that the verdict
11
Counsel should make a record if they do not agree that additional instructions should
be provided, or do not agree with the proposed instructions.
P a g e | 22
was entered in the minutes by the Clerk. Under the circumstances, there is no jury
verdict upon which the court could grant judgment.
Where a jury fails to issue a complete verdict, the court should not simply
withdraw the incomplete interrogatory. See Grey v. United Leasing, Inc., 91 A.D.2d 932
(1st Dept. 1983).
In Grey, the plaintiffs (husband and wife) filed suit for injuries
sustained when Kenneth Grey was struck in a crosswalk by a truck. At the end of trial,
the jury was asked to answer six interrogatories. The jury returned a verdict for the
plaintiffs which included an interrogatory answer that Kenneth Grey was 65% negligent
for the incident. The jury did not answer interrogatory IV, which asked [w]hat is the full
amount of damages suffered by the plaintiff Kenneth L. Grey? and [w]hat is the full
amount of damages if any, suffered by the plaintiff Khanh Grey? The trial court sent
the jury back for further deliberation. The jury returned still without an answer to
interrogatory IV. At this juncture, the trial court withdrew interrogatory IV from the jurys
consideration and accepted an incomplete verdict.
The trial court then awarded
$50,000 to Kenneth Grey and $10,000 to Khanh Grey. On appeal, the First Department
noted that it is obvious to us that the jury was hopelessly confused. At this point, the
Trial Court should have tried to charge the jury again. Holding that the trial courts
decision to withdraw the interrogatory was an error, the appellate court vacated the
judgment and the case was remanded for a new trial.
P a g e | 23
Occasionally a jury will deliberate in the face of instructions and substitute their
judgment for the questions on the verdict sheet. See Rivera v. Bronx-Lebanon Hosp.
Ctr., 70 A.D.2d 794 (1st Dept. 1979). Rivera was a medical malpractice lawsuit filed
against a hospital, orthopedist, and anesthesiologist. Before deliberations, the jury was
instructed that if they found in favor of plaintiff and against one or more defendants,
they were to return a single verdict against all defendants found to be liable and, should
the issue arise, to apportion the amount of the recovery between the defendants in
proportion to their contribution to the results. The jury ignored the Courts instruction.
Instead, it returned separate verdicts against the hospital and anesthesiologist on the
death claim for $50,000 and $15,000, respectively, and against the hospital and
anesthesiologist on the pain and suffering claim for $25,000 and $10,000,
respectively. 12 While the trial court could have corrected the verdict, or sent the jury
back to return a verdict that met with its instructions, it did not. Instead, the court
attempted to harmonize the jurys findings with its understanding of the legal issues.
The appellate division ordered a new trial.
b. Inconsistent Verdicts
While inconsistent verdicts usually occur in cases with multiple plaintiffs or
defendants and multiple theories of liability, they may crop up where a jury is, quite
simply, confused. Where there is confusion the court may order further deliberation.
See, e.g., Bowes v. Noone, 298 A.D.2d 859 (4th Dept. 2002) (court properly instructed
the jury to reconsider its inconsistent findings and issued additional instruction to help
12
Counsel for the plaintiff and defendants did not challenge the verdict before the jury
was discharged.
P a g e | 24
resolve any confusion); Roberts v. County of Westchester, 278 A.D.2d 216 (2d Dept.
2000) (while it was proper to order further deliberation, it was an error to fail to provide
additional instructions). If, after identifying a potential inconsistency, a court directs a
jury to deliberate further and the jury does not change its answers, its determination is
that much stronger. 13 In certain circumstances, a court may also conduct an inquiry into
clearly inconsistent interrogatory answers.
A potentially inconsistent verdict was addressed by the Second Department in
Soto v. Famulari. 28 A.D.3d 639 (2d Dept. 2006). The plaintiff in Soto filed suit for
personal injuries sustained when she fell down an exterior stairway at her home. The
home was owned by the defendant and the claims included negligent maintenance of
the stairs. The jury concluded that the defendant was negligent and that his negligence
was a proximate cause of the plaintiffs injuries.
The jury also concluded that the
plaintiff was negligent, but held the plaintiffs negligence was not a proximate cause of
her injuries. Sensing an inconsistent verdict, the defendant moved to set aside the
verdict.
The
trial
court
concluded
that
the
verdict
might
contain
a potential inconsistency, recharged the jury on negligence and proximate cause, and
sent them back for further deliberations. After additional deliberations, the jury returned
a verdict finding the defendant 70% at fault and finding the plaintiff 30% at fault. On
appeal, the Second Department held that the trial court did not err. 14
13
Counsel should consider asking the court to enter the consistent portions of the jury
verdict before returning the jury to deliberate on the inconsistent portions or the jury may
start from scratch.
14
Following further deliberations, a jury to free to change its mind and this is not error.
See, e.g., Mateo v. 83 Post Ave Assoc., 12 A.D.3d 205 (1st Dept. 2004) (jury's
P a g e | 25
In addition to directing a jury to deliberate further, a court may inquire into an

imperfect verdict if there is evidence of substantial confusion or ambiguity in the
verdict. 15 To start down this path, there must be some evidence of inconsistency on
the face of the interrogatory answers. See, e.g., Roberts v. County of Westchester, 278
A.D.2d 216 (2d Dept. 2000).
Whether there was inconsistency in the record was at issue in ODonnell v.
Calderson, 293 A.D.2d 457 (2d Dept. 2002). The plaintiff in ODonnell filed suit for
personal injuries. Before deliberations, the jury received a set of written interrogatories
which required yes or no answers on three questions relation to a section 5102(d)
serious injury. The jury was instructed that it should report to the court if its answer to
all three questions was no. The jury was also told it could ask questions if it did not
understand the instructions. The jury asked no questions and returned a verdict. The
court clerk asked the jury to report its answer to each of the three questions and the jury
negative response to interrogatory four, asking whether plaintiff's negligence was a
substantial factor in causing her injuries, and 25% apportionment of fault against plaintiff
in response to interrogatory five rendered its verdict inconsistent, and the trial court
properly directed the jury to reconsider. The jury did so, coming back with a negative
response to interrogatory three, asking whether plaintiff was negligent, and skipping
interrogatories four and five. We reject defendant's argument that the reconsidered
verdict evinces substantial jury confusion in that the jury, instructed to reconcile its
answers to interrogatories four and five, instead changed its answer to interrogatory
three. On reconsideration, the jury was free to substantively alter its original statement
so as to conform to its real intention, and was not bound by the terms of its original
verdict . . .); Ryan v. Orange County Fair Speedway, 227 A.D.2d 609 (2d Dept. 1996)
(jury free to change its mind until verdict is entered).
15
Confusion must be evident through, e.g., jury notes, jury questions, interrogatory
answers. The Court cannot speculate about deliberations and assume confusion. See,
e.g., Martinez v. Te, 75 A.D.3d 1 (1st Dept. 2010) (no evidence that jury was confused
and abdicated its responsibility).
P a g e | 26
answered no to each. That should have been the end of the case. However, for
reasons unknown, the court clerk asked the jury if it has answered any other questions
on the worksheet. The foreperson answered in the affirmative. Over objection from the
defendants, the jury was returned to the verdict room to deliberate further. Upon return
to the courtroom, the jury had a yes answer for one of the serious injury questions and
awarded the plaintiff damages for past and future pain and suffering.
On appeal, the Second Department noted that the trial court should have
accepted the jury verdict as final once it answered the first three interrogatories in the
negative. Id. Because the jury gave clear and definitive answers to the first three
interrogatories and those answers were not internally inconsistent, further inquiry by
the clerk was superfluous at best, and did not change the fact that the jury had already
determined that whatever injury the plaintiff may have received was insufficient . . . .
The judgment was reversed and the complaint was dismissed. 16
16
See also Bradley v. Feiden, Inc., 8 N.Y.3d 265 (2007) (Although the proof
adduced at trial primarily focused on an alleged defect in the defrost timer, there was
also evidence that the fire originated in the refrigerator/freezer. Specifically, the Fire
Department reports admitted into evidence identified the refrigerator/freezer as the
origin of the fire. Fire investigator Hamilton along with the forensic consultant Redsicker,
the only witnesses who did on-site investigations, both testified that the fire had its roots
in the freezer part of the unit. Surely, a jury could rationally conclude that such an
appliance was not fit for its intended purpose, regardless of whether the defrost timer
was defective, and thus that GE breached the implied warranty of merchantability. The
verdict sheet, as well as the jury instructions, specifically tied the strict products liability
claim--but not the breach of warranty claim--to the defrost timer. Thus, a rational jury
could have found that the defrost timer claim should be rejected, while also placing the
source of the fire in the freezer. Since the jury was not asked whether the refrigerator
was free from defect--only if the defrost timer was defective--the Appellate Division's
opinion that the jury could not rationally find that the refrigerator was not defective, yet
was nevertheless not fit to be used for its ordinary purposes, cannot be sustained here.
P a g e | 27
c. Compromise Verdicts
Compromise verdicts are impermissible and must be set aside. 17
See, e.g.,
Figliomeni v. Board of Ed. Of City School Dist. of Syracuse, 38 N.Y.2d 178 (1975)
(holding that a retrial on all issues is necessary where it can be demonstrated that an
inadequate verdict was the result of a compromise on the issue of liability); Dean v.
Security Mut. Ins. Co., 21 A.D.3d 658 (3d Dept. 2005) (award of $0 for cabin and $3000
for contents was a compromise because if the jury believed that plaintiff was entitled to
recover for his loss, the jury should have awarded plaintiff some monetary amount for
both the cabin and its contents. If the jury believed that plaintiff was responsible for the
fire, it should have concluded that he was not entitled to recover for the loss sustained
and, hence, should not have awarded any damages. In view of this apparent
contradiction, we agree with defendant that a new trial should be ordered on all
issues.); Moreno v. Thaler, 255 A.D.2d 195, 196 (1st Dept. 1998) (in view of the
sharply conflicting evidence on the issue of causation, plaintiffs serious injury and the
jurys inexplicably low award therefore, it was highly likely that the verdict was a
compromise verdict); Sheffield v. New York City Housing Auth., 200 A.D.2d 369, 369
(1st Dept. 1994) (Retrial is mandated on all issues where there is a strong likelihood
There was sufficient evidence presented to support the claim that the refrigerator was
not fit for its ordinary purpose. Accordingly, the jury's verdict should be reinstated and
the matter remitted to the Appellate Division for review of the facts.).
17
Mere mention of the word compromise does not mean the verdict was a
compromise verdict. See Manchester v. Bankhead Corp., 125 A.D.2d 740 (3d Dept.
1986) (jurors description of counsel of deliberations as a compromise did not
demonstrate an indication of an impermissible compromise verdict, where in the context
stated, the word "compromise" was not used as a term of art with its specific legal
meaning).
P a g e | 28
that the jury verdict results from a trade-off on a finding of liability in return for a
compromise on damages.).
The stigma of a compromise should not be attached to a jurys work unless it is
clear that no rational process could have led the jury to its decision. See, e.g., Rabito v.
Deer Park Mgt. Servs., LLC, 106 A.D.3d 798 (2d Dept. 2013) (conflicting evidence could
support verdict; no evidence of impermissible compromise); Schwartz v. Pierce, 57
A.D.3d 1348 (3d Dept. 2009) (where the evidence permits no basis for disagreement as
to amount, award other than that amount is evidence of a compromise verdict and
cannot stand); Schwartz v. Pierce, 57 A.D.3d 1348 (3d Dept. 2008) (jurys award of
$21,400, which was $9,800 less than defendants claimed damage of $31,200, was not
a compromise because jury may have ascribed difference to any work performed by
oral contract).
Typically, compromise verdicts arise in big damage cases where liability is a
close call. In this circumstance, jurors horse-trade a finding of liability from some in
return for a compromise on damages from others. See, e.g., Zimnoch v. Bridge View
Place, LLC, 69 A.D.3d 928 (2d Dept. 2010) (where jurys award for past and future
medical expenses after the first trial was substantially more than warranted by the
evidence or requested by the plaintiffs during their summation, there is a strong
likelihood that the damages award was the result of an impermissible compromise);
Mitchell v. Port Authority of N.Y., 65 A.D.3d 943 (1st Dept. 2009) (where jury awarded
$480,000 for future pain and suffering over 24 years, award of $20,000 for past pain
and suffering over 16 years was evidence of an impermissible compromise verdict);
Zgrodek v. McInerney, 651 A.D.3d 1106 (3d Dept. 2009) (finding of serious injury but no
P a g e | 29
past pain and suffering was a compromise verdict that, in conjunction with 15 minute
time limit imposed upon voir dire, required new trial); Mata v. Huntington Union Free
School Dist., 57 A.D.3d 738, 744 (2d Dept. 2009) (dissent notes that result may have
been by compromise because jury was in untenable position of having to consider the
possibility of ascribing a percentage of liability to a five year old who momentarily broke
a rule that she may not have been aware of or who acted on an irresistible impulse on
the spur of a childish moment); McKenna v. Lehrer McGovern Bovis, Inc., 302 A.D.2d
329 (1st Dept. 2003) (a trade-off on a finding of liability under scaffold law in return for a
compromise on damages is strongly indicated by a verdict that awarded nothing for pain
and suffering while simultaneously finding, as indicated by a substantial award for lost
earnings, that the accident caused a serious injury); Patrick v. New York Bus Serv., 189
A.D.2d 611 (1st Dept. 1993) (Where 'the issue of liability was sharply and substantially
contested and plaintiff's injuries were serious and the jury's award inexplicably low for
such serious injuries' it is most likely that 'the verdict . . . was . . . a compromise verdict,
in that in addition to finding plaintiff partially responsible for the accident, the jury also
compromised on liability and damages by finding the total amount of plaintiff's injuries
much too low.).
Often times, a compromise verdict may be identified by a verdict:
in an amount that is grossly inadequate given the injuries;

in an unusual denomination given the proof;
in an amount more/less than an uncontested figure;
awarding future pain and suffering damages without past pain and suffering
damages (or vice-versa);
awarding significant lost wages without a pain and suffering award; and/or
awarding significant future medical expenses without a pain and suffering
award.
P a g e | 30
If the court concludes that the jury reached a compromise verdict, it has two
choices: (1) order a new trial on liability and damages, or (2) order a partial trial on
damages only. Generally, where liability and damages are not intertwined, courts are
empowered to limit the new trial to the issue of damages. However, where liability and
damage are intertwined, or where there is evidence that liability votes were traded for
damage votes, a whole new trial must take place. See, e.g., Figliomeni, supra, 38
N.Y.2d at 182 (proper to have new trial on damage only); Moreno v. Thaler, 255 A.D.2d
195 (1st Dept. 1998) (compromise verdict requires new trial on all issues); Hogue v.
Wilson, 51 A.D.2d 424 (4th Dept. 1976) (Absent any error found in the record related to
the issue of liability which taints the verdict on damages or any other circumstances
which results in an impermissible compromise verdict, a retrial restricted solely to the
issue of damages is proper.); cf. Roseingrave v. Massapequa Gen. Hosp., 298 A.D.2d
377 (2d Dept. 2002) (jurys determination that patient was not entitled to damages for
past medical expenses or lost earnings was inconsistent with finding that surgeon was
liable for removal of intestine, and jurys award for future past and future pain and
suffering could be remedied by new trial on damage only).
P a g e | 31
d. Quotient Verdicts
A quotient verdict is one where the jurors, in essence, pre-agree to deliberate
separately and then average their individual assessments of damages into a joint figure.
This pre-agreement is impermissible because jurors are supposed to deliberate as a
collective group.
It is unlikely that counsel will identify a quotient verdict before the jury is
discharged. Typically, a quotient verdict is uncovered after thorough examination of a
verdict worksheet and after conversation with the panel, followed by the submission of a
juror affidavit.
Counsel must understand that the only thing that makes a quotient verdict
impermissible is the pre-agreement between the jurors to be bound by the quotient.
Should jurors, instead, simply average their respective thoughts on damage, or (2) preagree to a quotient verdict but, after arriving at the quotient figure, they deliberate
further on that figure and adopt it, the verdict is not improper. See, e.g., Micozzi v.
Glowacki, 178 A.D.2d 585 (2d Dept. 1991) (error to set aside verdict because [i]n the
absence of . . . an advance agreement to abide by the average of the jurors
percentages, a verdict based upon the average judgment of all the jurors is not illegal);
Peters v. Newman, 115 A.D.2d 816, 817 (3d Dept. 1985) (despite jury foremans
statement that the damage figures determined by each juror were added and then
divided by six to decide the award, the jurors did not dispense with collective
discussion, deliberation and reasoning because they collectively discussed the
resulting figures after the computations and recomputed the awards if they did not agree
upon the sums arrived at. Thus, they did not render an improper quotient verdict.).
V.
P a g e | 32
CHALLENGING THE VERDICT IN POST-TRIAL MOTIONS

A. Generally
Post-trial motion practice centers on a search of the trial record to identify
courtroom errors, (mis)conduct or decisions that may have prompted a verdict that was
against the weight of the evidence or should be overturned in the interest of justice.
Every conversation about post-trial motion practice begins with a review of CPLR
4404 which provides:
(a) Motion after trial where jury required. After a trial of a cause of
action or issue triable of right by a jury, upon the motion of any
party or on its own initiative, the court may set aside a verdict or
any judgment entered thereon and direct that judgment be entered
in favor of a party entitled to judgment as a matter of law or it may
order a new trial of a cause of action or separable issue where the
verdict is contrary to the weight of the evidence, in the interest of
justice or where the jury cannot agree after being kept together for
as long as is deemed reasonable by the court.
(b) Motion after trial where jury not required. After a trial not triable
of right by a jury, upon the motion of any party or on its own
initiative, the court may set aside its decision or any judgment
entered thereon. It 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 it may order a new trial of
a cause of action or separable issue.
Once the jury is discharged, counsel may move orally for judgment as a matter of
law and/or for a new trial without waiving the right to make a motion in writing under
CPLR 4404. An oral motion is not a condition precedent to a written motion and, quite
frankly, is a course often abandoned because courts are reluctant to grant meaningful
relief without written motion papers.
P a g e | 33
A note of caution where an oral motion is made and, in response, the Court
directs counsel to submit written motion papers.
If counsel does not object to the
Courts failure to rule on the oral motion and written motion papers do not timely follow,
the oral application to set aside the verdict is abandoned. See, e.g., Plantation House &
Garden Products, Inc. v. R-Three Investors, 285 A.D.2d 539 (2d Dept. 2001) (affirming
judgment where counsel, after making oral motion, failed to submit written motion within
10 days as directed); Acovangelo v. Brundage, 271 A.D.2d 885, 886 (3d Dept. 2000)
([f]ollowing plaintiffs oral motion to set aside the verdict, plaintiff agreed as suggested
by Supreme Court to submit papers on the motion within 15 days and, in the absence
of submissions or an objection to Supreme Courts failure to rule on the oral motion at
the time it was made, we conclude that plaintiff abandoned the motion and therefore, no
appeal lies, as in effect no motion was made which would result in an appealable
order).
Whether oral and/or written, a post-trial motion must be made to the Judge who
presided over the trial.
See N.Y.C.P.L.R. 4405. 18
Logically, the trial judge is the
recipient of the post-trial motion because, having presided over the trial, she is in the
best position to evaluate any errors. See Micallef v. Miehle Co., 39 N.Y.2d 376, 381
(1976) (CPLR 4404(a) . . . is predicated on the assumption that the Judge who
presides at trial is in the best position to evaluate errors therein. The Trial Judge must
18
See generally Judiciary Law section 21 which provides:

A judge other than a judge of the court of appeals, or of the appellate
division of the supreme court, shall not decide or take part in the decision
of a question, which was argued orally in the court, when he was not
present and sitting therein as a judge.
P a g e | 34
decide whether substantial justice has been done, whether it is likely that the verdict has
been affected and must look to his own common sense, experience and sense of
fairness rather than to precedents in arriving at a decision.) (internal quotations and
citations omitted).
Where the trial judge becomes unavailable (e.g., incapacity, death, ascension to
the appellate bench) a successor judge may be an option for resolution of post-trial
motions. See, e.g., Plunkett v. Emergency Medical Service of New York City, 234
A.D.2d 162 (1st Dept. 1996) (successor judge could consider motion to set aside jury
verdict because purely legal questions were involved and prior discussion had been
recorded in minutes); Bonasera v. Town of Islip, 19 A.D.3d 525, (2d Dept. 2005)
(plaintiffs motion to set aside jury verdict on liability for defendant and judgment as a
matter of law could be heard by judge other than trial judge, after trial judge was
designated an Appellate Division justice, since perspective of trial judge was not
essential to proper evaluation of plaintiffs post-trial motion, which was not argued orally
in court).
B. Timing
A CPLR 4404 motion must be made in a jury case within 15 days after the
rendition of the verdict or the discharge of the jury. In a judge-tried case, the motion
must be made within 15 days from when the judges decision is filed. See Bernstein v.
Swidunovich, 44 Misc.2d 728 (Sup. Ct., N.Y. Cty., Dec. 15, 1964) (15 days runs from
date of filing not date of decision). In a non-jury trial, the court can set aside its own
decision on its own initiative even after 15 days.
P a g e | 35
The 15 day deadline may be extended by the Court upon such terms as may be
just and upon good cause shown, whether the application for extension is made before
or after the expiration of the time fixed.19 N.Y.C.P.L.R. 2004; see Mora v. Cassino, 196
Misc.2d 403 (N.Y. City Civ. Ct., Feb. 19, 2003) (exercising discretion to hear CPLR
4404 motion in the absence of good cause where delay was respondents fault because
it was only a matter of days beyond the 15 days provided in CPLR 4405 and there was
strong public policy for the motion to be heard).
For a discussion of how vicarious liability can save the day, see Salisbury v.
Christian, 68 A.D.3d 1164 (4th Dept. 2009). The plaintiffs in Salisbury filed suit against
a negligent driver and the bank owner/lessor of the car. At trial, the driver and bank had
separate counsel. The jury awarded more than $3,200,000 in damages. After trial,
counsel for the driver filed a timely CPLR 4404 motion. The bank did not. Instead, it
filed a cross-motion. The Fourth Department excused the untimely CPLR 4404 motion
because the liability of [the bank] is vicarious and this is inseparable from the liability of
[the driver].
19
Where a party asks for direction with respect to the submission of a written CPLR
4404 motion, and the inquiry goes unheeded by the court, a motion made two months
later is not untimely. See Brown v. Two Exch. Plaza Partners, 146 A.D.2d 129 (1st
Dept. 1989).
P a g e | 36
C. Form
There shall be only one written request for post-trial relief and it must be
comprehensive. Pursuant to N.Y.C.P.L.R. 4406:
In addition to motions made orally immediately after decision,
verdict or discharge of the jury, there shall be only one motion
under this article with respect to any decision by a court, or to a
verdict on issues triable of right by a jury; and each part shall raise
by the motion or by demand under rule 2215 every ground for posttrial relief available to him.
A CPLR 4404 motion should be identified as such.
An untimely CPLR 4404
should not be camouflaged and cast as a motion for reargument. See, e.g., Brozozowy
v. Elrac, Inc., 39 A.D.3d 451 (2d Dept. 2007) (denying as untimely plaintiffs motion
which dominated as one for leave to renew and reargue but which was, in effect,
pursuant to CPLR 4404(a) to set aside the jury verdicts and for a new trial); Casey v.
Slattery, 213 A.D.2d 890 (3d Dept. 1995) (trial court should not have accepted
plaintiffs characterization of his motion as one for reargument since it was an obvious
artifice designed to evade the time limitation of CPLR 4405).
D. Grounds
a. Contrary to Law or Against Weight of Evidence
Whether to set aside a verdict as contrary to law or against the weight of the
evidence is a fact specific inquiry that lies within the sound discretion of the trial court.
Absent an abuse of that discretion, a trial judges decision in this regard will not be
disturbed on appeal. See Osborne v. Schoenborn, 216 A.D.2d 810 (3d Dept. 1995).
P a g e | 37
For purposes of these materials, the standard for review is that a jury verdict
should not be set aside as against the weight of the evidence unless the jury could not
have reached the verdict by any fair interpretation of the evidence. Abayev v. Jewelry
Mfg. Corp., 44 A.D.3d 693 (2d. Dept. 2007); see, e.g., Castellano v. New York City
Trans. Auth., 38 A.D.3d 822 (2d Dept. 2007) (no basis to find for plaintiff as only proof
was that plaintiff was struck by train which did not prove defendants negligence);
Gomez v. 192 East 151st Street Associates, L.P., 26 A.D.3d 276 (1st Dept. 2006) (no
basis to divide liability 80/20 between city and out-of-possession landlord because there
was no evidence at trial that landlord had notice of defect and consented to be
responsible for repairs).
In Cohen v. Hallmark Cards, Inc., the Court of Appeals held:
[T]he question whether a verdict is against the weight of the
evidence involves what is in large part a discretionary balancing of
many factors. For a Court to conclude as a matter of law that a jury
verdict is not supported by sufficient evidence, however, requires a
harsher a more basic assessment of the jury verdict . . . . [I]n any
case in which it can be said that the evidence is such that it would
not be utterly irrational for a jury to reach the result it had
determined upon, and thus a valid question of fact does exist, the
Court may not conclude that the verdict is as a matter of law not
supported by the evidence.
45 N.Y.2d 493 (1978); see also Lolik v. Big V Supermarkets, Inc., 86 N.Y.2d 744 (1995).
P a g e | 38
b. Interests of Justice
i. Voir Dire
Unrealistic limitations placed on voir dire may result in a new trial. 20 See, e.g.,
Zgrodek v. McInerney, 61 A.D.3d 1106 (3d Dept. 2009) (set aside verdict because 15
minutes for each round of jury selection under the circumstances of this case was
unreasonably short).
ii. Continuance
Pursuant to N.Y.C.P.L.R. 4402, [a]t any time during the trial, the court, on motion
of any party, may order a continuance or a new trial in the interest of justice on such
terms as may be just.
To the Bar, this is better known as the mistrial motion. It is the vehicle to abort
a trial and start over with a new jury, or to postpone the trial into the future with the
same jury. Whether to grant a continuance is a matter of discretion of the trial court.
See, e.g., Taveras v. Martin, 54 A.D.3d 667 (2d Dept. 2008). A trial court abuses its
discretion by denying a continuance during trial where application complies with every
requirement of law and is not made merely for delay, evidence sought is material, and
need for continuance does not result from failure to exercise due diligence. In re Tripp,
101 A.D.3d 1137 (2d Dept. 2012) (declining to grant continuance after considering
merit or lack of merit of action, extent of delay, the number of adjournments granted,
the length of the proceeding, and intent to deliberately default or abandon the action);
20
See generally IMPLEMENTING NEW YORK'S CIVIL VOIR DIRE LAW AND RULES, at III.C.,
located at http://www.nycourts.gov/publications/pdfs/ImplementingVoirDire2009.pdf (in
a routine case a reasonable time period to report on the progress of voir dire is after
about two or three hours of actual voir dire).
P a g e | 39
Guzman v. 4030 Bronx Blvd. Assoc., 54 A.D.3d 42 (1st Dept. 2008) (error for trial court
to deny plaintiffs request for continuance to secure additional medical expert to testify
where defendant did not move until trial to preclude the plaintiffs expert from testifying);
Canty v. McLoughlin, 16 A.D.3d 449 (2d Dept. 2005) (where plaintiff rested at 3:30 p.m.
and defendant requested adjournment of proof to 9:30 a.m. the next morning to present
a witness, it was error for the court to deny request).
Common grounds for a 4402 motion include: (1) witness unavailability, (2) need
for additional evidence, 21 (3) illness, (4) surprise, (5) law firm failure, 22 and (6) new
counsel. If a party hopes to prevail on this motion, the party must not be guilty of
neglect. See, e.g., Waters v. Silverock Baking Corp., 172 A.D.2d 984 (3d Dept. 1991)
(trial court did not abuse discretion denying request for continuance for out-of-state
witness testimony where where defendant had made no effort to obtain witness return
to state and witness testimony could have been timely secured).
21
Counsel should expect the trial court to test the relevance of the additional evidence
before determining whether to grant a continuance. See, e.g., 174 Second Equities,
Corp. v. Hee Nam Bee, 57 A.D.3d 319 (1st Dept. 2008) (court properly denied eleventhhour continuance to subpoena witnesses where counsel could not provide the court with
any information about the identity of the witnesses or the relevance of their testimony);
Moretta v. Davenport Express, Inc., 243 A.D.2d 547 (2d Dept. 1997); (trial court did not
abuse discretion in denying plaintiffs request for continuance in personal injury action in
order to produce police officer where responded to accident as officer was not a witness
to the accident, plaintiff did not claim officer conducted an investigation that would yield
relevant testimony, and witness statement in officers report was hearsay); Michaels v.
Salimonte, 121 A.D.2d 370 (2d Dept. 1986) (denying one day continuance to produce a
witness because plaintiff could only speculate as to what witness testimony would be).
22
See, e.g., Brusco v. Davis-Klages, 302 A.D.2d 674 (3d Dept. 2003) (court properly
granted continuance where plaintiffs counsel explained that he met with clients in May
of 2002, went on vacation, and failed to follow-up after vacation to learn before the
August trial that the treating physician would only appear for videotaped testimony, and
the next available date was in October).
P a g e | 40
Postponement for days or even weeks may be appropriate under the

circumstances. See, e.g., Newmark v. Animal Emergency Clinic of Hudson Val., 38
A.D.3d 1110 (3d Dept. 2007) (after plaintiff was granted one day continuance to
produce and expert, and failed to produce the witness, it was not an error for trial court
to deny request for further continuance even though expected testimony was material
and necessary because counsel could not outline steps she took to secure the witness);
Buscaglia v. Ruh, 140 A.D.2d 996 (4th Dept. 1988) (four day continuance to allow
defendant to produce an out-of-state witness to testify about attendance at a social
event was acceptable); Bruce v. Hospital for Special Surgery, 34 A.D.2d 963 (2d Dept.
1970) (error to refuse defendants request for three week adjournment so that crucial
medical witness could testify since the explanation for his absence was plausible).
iii. Excessive/Inadequate Verdict
There are, literally, thousands of cases that speak to jurys award of too little or
too much compensation. The analysis is fact specific. For purposes of these materials,
the standard for appellate review is whether the award deviates materially from what
would be reasonable compensation. N.Y.C.P.L.R. 5501(c).
iv. Mistakes and Misconduct
Courtroom conduct may give rise to a new trial in the interests of justice.
Generally, to result in a new trial the conduct must be continual, deliberate, outrageous,
and/or blantly improper.
P a g e | 41
1. Counsel
Lawyer (mis)conduct is a common ground for a new trial.
While trial and
appellate courts are patient sometimes to a fault there is a limit.

A deliberate effort to divert the jurors and courts attention from the issues to be
tried may result in a new trial. See, e.g., Reynolds v. Burghezi, 227 A.D.2d 941 (4th
Dept. 1996) (remarks required new trial because they did not consist of an isolated
remark during questioning or summation, but a seemingly continual and deliberate effort
to divert the jurors' and the court's attention from the issues to be determined).
It is well-settled that counsel should have no contact with jurors during trial.
Contact likely means a new trial. See, e.g., Heller v. Provenzano, 257 A.D.2d 378 (1st
Dept. 1999) (new trial necessary in interests of justice, even though there was no
request for mistrial, because plaintiffs attorney entered jury room during trial, spoke with
prospective Hispanic jurors in Spanish, and told the jury that his wife was Hispanic).
Counsel should follow court orders and rulings. Repeated and flagrant disregard
of court directives likely means a new trial. See, e.g., Stewart v. Olean Med. Group,
P.C., 17 A.D.3d 1094 (4th Dept. 2005) (new trial necessary where counsel for plaintiffs
estate persistently questioned witnesses concerning evidence that the trial court
previously deemed inadmissible, and improperly referred to that evidence in
summation); Lidge v. Niagara Falls Memorial Medical Center, 17 A.D.3d 1033 (4th
Dept. 2005); (two fleeting references to precluded evidence did not create a
substantial possibility of injustice); Doody v. Gottshall, 67 A.D.3d 1347 (4th Dept. 2009)
(new trial were defense attorney repeatedly expressed his personal opinion regarding
P a g e | 42
cause and severity of plaintiffs injury, and made arguments in summation not supported
by the evidence); Winiarski v. Harris, 78 A.D.3d 1556 (4th Dept. 2010) (improper to
permit plaintiff to read into evidence a passage from an unidentified medical treatise and
to refer to then stricken testimony in closings, but the errors were not so flagrant or
excessive that a new trial is warranted); Schaffer v. Kurpis, 177 A.D.2d 379 (1st Dept.
1991) (new trial where defense counsel interjected plaintiffs alleged cocaine use
without good faith basis, willfully failed to follow court rulings, and had repeated
exchanges with the bench that were acrimonious).
Counsel should be cautious about commenting on the quality of the proof
especially where the quality and/or quantity of proof has something to so with motions
made during discovery. See, e.g., DiMichel v. South Buffalo Ry. Co., 80 N.Y.2d 184
(1992) (where plaintiff secured protective order to stop defense vocational experts
examination of plaintiff, and made repeated comments during trial about experts lack of
exam to discredit witness, new trial was necessary because it created appearance that
experts testimony was incomplete and unreliable).
Attorney statement to or commentary about his adversary and witnesses may
result in a new trial. See, e.g., Boyd v. Manhattan and Bronx Surface Tr. Operating
Auth., 79 A.D.3d 412 (1st Dept. 2010) (no new trial where counsel made a comment
during cross-examination that prompted her adversary to ask the court to instruct
plaintiff's counsel to shut her mouth as the court immediately admonished both
attorneys, specifically told defense counsel that he should refrain from using such
inappropriate language, and the commentary did not create a climate of hostility that so
obscured the issues as to have rendered the trial unfair); Kennedy v. Childrens Hosp.
P a g e | 43
of Buffalo, 288 A.D.2d 918 (4th Dept. 2001) (new trial where defense counsel refused to
abide by court rulings during trial, argued with the court after rulings were made,
badgered plaintiffs attorney throughout trial including 30 objections during summation,
interrupted witnesses, and called the arguments of the plaintiffs attorney preposterous
and absolutely objectionable); Bagailuk v. Weiss, 110 A.D.2d 284 (3d Dept. 1985)
(commentary about the absence of the defendant during trial was so he could tailor his
testimony was inaccurate and improper); Caraballo v. City of New York, 86 A.D.2d 580
(1st Dept. 1982) (new trial necessary due to comments made by plaintiffs attorney in
summation, including this clever lawyer has been jabbing and moving around for two
weeks with illegal procedures, hes a tricky lawyer, he is skilled, experienced, tricky,
deceptive, and that is what this is really all about, and that is what is happening here,
they will say anything to beat this case because, ladies and gentlemen, theres a lot of
money involved here, they bring in a phony doctor for a price, he said yes, there will
be a bill. How much do you charge for perjury doctor, he brought in that poor black
man. They put him up to coming here. They used him); Brooks v. Judlau Contracting,
Inc., 39 A.D.3d 447 (2d Dept. 2007) (new trial needed in the face of repeated
denigration of ironworkers witnesses and their counsel).
Where counsel inserts herself into the case by commenting on the credibility of
the witnesses and/or the proof, or becomes the proof, a new trial may follow. See, e.g.,
Venezuela v. City of New York, 59 A.D.3d 40 (1st Dept. 2008) (new trial necessary
where counsel acted as unsworn translator and spoke about his personal observations
of softball field where plaintiff was injured); ONeil v. Klass, 36 A.D.3d 677 (2d Dept.
2007) (new trial necessary where defense counsel repeatedly characterized a witnesss
P a g e | 44
responses as lies, accused the witness of deliberately misleading the jury and called
the witness an evasive person as well as a professional witness); Minichiello v.
Supper Club, 296 A.D.2d 350 (1st Dept. 2002) (new trial necessary where plaintiffs
attorney referred to a German national witness as someone who exhibited an attitude
of hated and made forced analogies to Nazi Germany and the Holocaust, as the
comments were not inadvertent or harmless in the aggregate);
The introduction of extensive irrelevant and highly prejudicial evidence at trial
may lead to a mistrial. See Smolinski v. Smolinski, 78 A.D.3d 1642 (4th Dept. 2010) (in
case against Ford Credit for personal injuries plaintiff sustained in a car leased from the
defendant, it was improper for plaintiffs attorney to elicit 70 pages of trial testimony
about the plaintiffs life before the injury which, when joined with comments during
summation that the defendant was engaged in a cover-up, and it witnesses had testified
falsely for compensation, required a new trial).
2. Court
It is well-known that the trial judge has authority to regulate courtroom
proceedings. N.Y.C.P.L.R. 4011 provides:
The court may determine the sequence in which the issues shall be
tried and otherwise regulate the conduct of the trial in order to
achieve a speedy and unprejudiced disposition of the matters at
issue in a setting of proper decorum.
Consistent with their inherent and statutory authority, some courts take an active role
in the examination of witnesses. This is proper provided the court is even-handed and
impartial.
P a g e | 45
Occasionally, a trial judge may overstep his or her authority through exchanges
with counsel, witnesses and/or jurors. Where this happens and the jury is improperly
influenced, the interests of justice may require a new trial.
See, e.g., Snediker v.
Orange Cty., 58 N.Y.2d 647 (1982) (no substantial prejudice necessary for new trial
despite an oral communication from the juror to the trial judge, and [a] communication
between the juror and the clerk regarding the jurors wifes desire that the juror
telephone her which should have been conveyed to counsel); Lorenzo v. Mass, Inc., 31
A.D.3d 616 (2d Dept. 2006) (reprimand of dense counsel for adamant and repeated
refusal to adhere to directions by the trial court did not demonstrate bias warranting
reversal of verdict for plaintiff); Schaffer v. Kurpis, 177 A.D.2d 379, 380 (1st Dept. 1991)
(reversible error where fencing match indulged in by the court with plaintiffs expert
witness as well as unwarranted interventions repeated with virtually every other
witness could not have failed to impress upon the jury the courts prevailing skepticism
as to the merits of plaintiffs case); Brown v. Moodie, 116 A.D.2d 980 (4th Dept. 1986)
(improper for court to communicate with juror in the absence of the parties because
helping the juror to answer the questions on the verdict sheet and in actually doing
arithmetic, the court may have inadvertently placed its imprimatur on certain possible
factual determinations before the jurors had reached a consensus); Kamen Soap
Prods. Co. v. Prusasky & Prusansky, 11 A.D.2d 676 (1st Dept. 1960) (judges lengthy
cross-examination of plaintiffs witnesses, constant interruptions of answers of the
witnesses, and unnecessary criticisms of plaintiffs counsel amounting to 500 pages of
a 2500 page transcript deprived the plaintiff a fair trial).
P a g e | 46
The court may examine witnesses. Where the court elects to examine a witness,
the questions may not suggest the courts own views. See, e.g., Kelly v. Metropolitan
Ins. and Annuity Co., 82 A.D.3d 16 (1st Dept. 2011) (experts sigh prompted court to
conduct an improper inquiry that left the jurors with the distinct and unmistakable
impression that the court disapproved of plaintiffs expert and credited none of her
testimony); Kavanaugh v. Nussbaum, 129 A.D.2d 559, (2d Dept. 1987) (courts
infrequent examining of witnesses for limited duration was acceptable because it was
not done in a way as to suggest the courts own views), affd as modified, 71 N.Y.2d
(1988).
Whether the court has gone too far during questioning will depend upon: (1) the
manner in which the questions were phrased, (2) the number of questions asked, (3)
whether questioning was tantamount to cross-examination, (4) whether questioning led
to rehabilitation of the witness, and (5) whether the court impaired counsels
examination of the witness and/or role at trial. See, e.g., Sefaradi v. Assil, 175 A.D.2d
281 (2d Dept. 1991) (new trial necessary where court took over trial, engaged in
extensive colloquy with attorney, permitted only three questions of the plaintiff and two
of the defendant, asked three of the five questions permitted, and precluded testimony
from witnesses present and prepared to testify); Gerichten v. Ruiz, 80 A.D.2d 578 (2d
Dept. 1981) (trial courts repeated interruptions, cross-examination and questions
intended to rehabilitate required new trial); Whitehead v. Mutual Life Ins. Co. of New
York, 264 A.D. 647 (3d Dept. 1942) (trial court denied plaintiff fair trial by repeated
interruption of plaintiffs counsel during examination of plaintiffs medical witness and by
P a g e | 47
cross-examination of the witness at length, especially since the defendant was

represented by experienced counsel who needed no assistance from the bench).
The Court may scold or admonish counsel where the conduct of counsel invites
reprimand.
See, e.g., Hoey v. Rawlings, 51 A.D.3d 868 (2d Dept. 2008) (court
reprimand of attorney and threat of contempt for behavior during medical malpractice
trail did not exhibit bias requiring new trial where counsel was rude, offensive and
ignored the courts admonition to desist); Genco v. Millard Fillmore Suburban Hosp.,
275 A.D.2d 920 (4th Dept. 2000) (no new trial where court expressed personal opinions
about hospitals responsibility for presence of laparotomy pad during colloquies with
counsel in the presence of jury because comments were in response to defense
counsels improper attempts to introduce evidence concerning defense that were not
pleaded); Alonso v. Powers, 220 A.D.2d 311 (1st Dept. 1995) (when the trial judge
became impatient with bickering between counsel and humorously on two occasions
threatened to lock them in a closet filled with weapons so they could settle their
disputes, and where the comments were addressed to counsel and were not objected to
by either side, no prejudice resulted). 23
23
What if the trial judge sustains unmade objections? See, e.g., Heilbrunn v. Town of
Woodstock, 50 A.D.3d 1377 (3d Dept. 2008) (no bias requiring new trial where court
sustained unmade objections, questioned the qualifications of one of plaintiffs experts
in open court with the jury present, and examined witnesses).
P a g e | 48
The statistical distribution of trial rulings, when combined with other unusual
conduct, may give rise to a new trial. See DeCrescenzo v. Gonzalez, 46 A.D.3d 607
(2d Dept. 2007). In DeCrescenzo, a new trial was ordered where the trial judge:
demonstrated a propensity to admonish the defense counsel at a

substantially more frequent rate than she did the plaintiffs' counsel,
often admonishing the defense counsel for actions about which she
failed to comment when committed by the plaintiffs' counsel. She
gave the plaintiffs' counsel significantly more leeway in crossexamining witnesses and in making extraneous comments than she
gave the defense counsel. During the trial and in front of the jury,
she gave a gift to the infant plaintiff. Later, also during trial, she
gave each jury member a gift when the court recessed for a holiday
break. Under the circumstances, the defendants were denied a fair
trial by virtue of the cumulative effect of the improper conduct of the
trial court, and as a result, the jury could not have considered the
issues at trial in a fair, calm, and unprejudiced manner
3. Party
The parties should not fraternize with jurors during trial. See Cambell v. Towber,
46 Misc.2d 891 (while defendant was entitled to a new trial because the plaintiff allowed
a juror to walk with her for eight minutes to her to her home and to console her after
they had accidentally met, during which juror told plaintiff everything would be OK,
defendants attorney waived right to new trial following verdict for plaintiff because he
learned about misconduct either through conversation with the plaintiff or by personal
observation and chose to withhold that knowledge until she was certain of the outcome).
P a g e | 49
4. Juror
It is not every irregularity in the conduct of jurors that requires a new trial.
Wiener v. Davidson, 61 A.D.2d 1030 (2d Dept. 1978), quoting People v. Dunbar Contr.
Co., 215 N.Y. 416 (1915). However, a new trial may be warranted in the interests of
justice if there has been improper influence or there is evidence that substantial
justice has not been done as a result of juror misconduct. Gabrelle G. v. White Plains
City School Dist., 106 A.D.3d 776 (2d Dept. 2013) (no new trial where only evidence of
juror misconduct was post mortem affidavit that a juror had commenced deliberations
with alternate jurors over lunch); LaChapelle v. McLoughlin, 68 A.D.3d 824 (2d Dept.
2009) (no new trial following defense verdict where juror asked plaintiffs attorney to
give her car a jump, lawyer said he could not talk to the juror and informed court officer
and, after questioning from the court, the juror stated that the contact would ne effect on
her ability to be fair and impartial).
A prospective juror is duty bound to truthfully answer all questions posed during
voir dire . . . [and] is obligated to volunteer information which he or she has reason to
believe would render him unacceptable to the litigants.
Matter of Buchanan, 245
A.D.2d 642, 646 (3d Dept. 1997). Where a juror conceals facts, bias or prejudice, a
party may be entitled to a new trial. See, e.g., Remillard v. Louis Williams, Inc., 59
A.D.3d 764 (3d Dept. 2009) (insufficient evidence that juror failed to truthfully answer
voir dire questions about her relationship with the plaintiff in order to establish
misconduct necessary to grant new trial). The party seeking the new trial bears the
burden of demonstrating that the juror deliberately and willfully failed to disclose . . . [a]
fact. Remillard, 59 A.D.3d at 766.
P a g e | 50
It is well-settled that it is not proper for a juror to travel to the scene of an

accident or incident during the trial. See, e.g., Alford v. Sventek, 53 N.Y.2d 743 (1981)
(juror went to the scene).
Jurors should not refer to materials outside of the record to inform their
deliberations. Depending upon the reference material used, and the purpose for the
inquiry, this misconduct may or may not result in a new trial. See, e.g., Nicolla v.
Fasulo, 161 A.D.2d 966 (3d Dept. 1990) (jurors review of physician desk reference
(PDR) did not necessitate new trial); Sansone v. Lake, 124 A.D.2d 990 (4th Dept. 1986)
(no new trial where juror looked up proximate cause in dictionary); Maslinski v.
Brunswick Hospital, 118 A.D.2d 834 (2d Dept. 1986) (new trial necessary where juror
looked up malpractice in several medical dictionaries).
Jurors are free to like one party more than the other for a constellation of
reasons, provided their favoritism does not rise to the level of bias and impede impartial
deliberations. See, e.g., Capital Medical Systems v. Fuji Medical System, 270 A.D.2d
728 (3d Dept. 2000) (no new trial where juror expressed during trial that she wanted to
work for the defendant after trial and spoke with defendant about employment after trial
ended); Beemer v. Town of Portville, 2003 WL 21402040 (Sup. Ct. Cattaraugus Cty.,
May 29, 2003) (no new trial where juror gave plaintiff and other jurors inexpensive gifts
after trial, as well as card to court and deputies).
P a g e | 51
The Court must provide counsel an opportunity to make a record about juror
misconduct for appellate review. See Hutchinson v. Clare Rose, 40 A.D.3d 702, 704
(2d Dept. 2007) (error for trial judge to discuss matters going to the heart of the
deliberative process with a juror without making a record, and for denying plaintiffs
request to make a record when it became clear that juror had breached instructions;
errors irreparably impaired the ability of counsel to make proper post-judgment
application to set aside the verdict due to juror misconduct).
5. Perjury
A new trial may be necessary where there is clear evidence that a verdict was
obtained by false or perjured testimony. However, there must be proof beyond mere
conflicting testimony. See, e.g., Pizzi v. Anzalone, 261 A.D.2d 374 (2d Dept. 1999)
(new trial proper where defendant admitted after trial that he testified untruthfully as to
factual matters material to the verdict); Pastore v. Boone, 127 A.D.2d 872 (3d Dept.
1987) (no basis for new trial for perjury where plaintiff and defendants presented
conflicting versions of the facts); Solomon v. Solomon, 27 A.D.3d 988 (3d Dept. 2006)
(while judgment may be vacated if it is established that it was predicated upon
fraudulent testimony which affected the outcome of the trial, insufficient proof in record
for new trial); cf. Trapp v. American Trading and Production Corp., 66 A.D.2d 515 (1st
Dept. 1979) (jury verdict in plaintiff's favor was properly vacated where one of the
plaintiff's key witnesses was an impostor; the perjury so infected the verdict as to
require that the verdict be set aside in the interest of justice).
P a g e | 52
6. Surprise During Trial

Unfair surprise at trial is a basis for a new trial in the interests of justice
provided the surprise is not due to a lack of diligence on the part of the party seeking
relief. See, e.g., Hannon v. Dunkirk, 167 A.D.2d 834 (4th Dept. 1990) (error to deny
new trial due to surprise of newly discovered evidence where plaintiff could not have
anticipated the use of time cards at trial that were withheld by opponent); Xavier v.
Grunberg, 67 A.D.2d 632 (1st Dept. 1979) (where plaintiff knew of witness with
knowledge four years before trial, it was an error to permit plaintiff to modify theory
during trial from constructive to actual notice via motion to amend the pleadings to
confirm to the proof, as this was unfair surprise requiring new trial); cf. Andree v.
Winthrop University Hosp., 277 A.D.2d 265, 266 (2d Dept. 2000) (following jury verdict
for plaintiff in medical malpractice action, no new trial based upon the surprise testimony
offered by the defendants expert witness who testified as she did due to his own error,
which could have been anticipated in the exercise of due diligence).
P a g e | 53
APPENDIX
P a g e | 54
SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF HERKIMER
-against-
GENERAL
VERDICT
WORKSHEET
Defendant
Index No.:
Plaintiff
Select one of the following two options:
______
We find in favor of plaintiff and against defendant and award damages to

plaintiff in the amount of $__________________________.
______
We find in favor of defendant and against plaintiff.
Singed:
________________________________
________________________________
________________________________
________________________________
________________________________
________________________________
Dissenting Juror, If Any
P a g e | 55
SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF HERKIMER
GENERAL
VERDICT
WORKSHEET
(INCLUDING
INTERROGATORIES)
Plaintiff
-againstDefendants.
Index No.:
Select one of the following two options:
______
We find in favor of plaintiff and against the defendants and award damages to
plaintiff in the amount of $__________________________.
______
We find in favor of defendants and against plaintiff.
INTERROGATORIES
1.
Did the plaintiff prove by a preponderance of the evidence that Jim Jones operated the
tractor in a negligent manner?
______ Yes
2.
Did the plaintiff prove by a preponderance of the evidence that Jim Jones was working
for Farm Supply when the plaintiff was injured?
______ Yes
3.
_____ No
Did the plaintiff prove by a preponderance of the evidence that the tractor was owned by
Smith Equipment when the plaintiff was injured?
______ Yes
4.
_____ No
_____ No
As between the Jim Jones, Farm Supply and Smith Equipment, how do you divide
responsibility for the plaintiffs injuries (total must be 100%):
______ Jim Jones
_____ Farm Supply
_____ Smith Equipment
Singed:
P a g e | 56
________________________________
________________________________
________________________________
________________________________
________________________________
________________________________
Dissenting Juror, If Any
P a g e | 57
STATE OF NEW YORK

SUPREME COURT
COUNTY OF ONONDAGA
MICHAEL J. BROWN, Individually and as Administrator
of the Estate of CYNTHIA H. SHUTE BROWN,
Plaintiff,
-againstMICHAEL S. TONG, M.D., individually and as an officer,
agent and/or employee of NORTH MEDICAL FAMILY
PHYSICIANS, P.C.; NORTH MEDICAL FAMILY
PHYSICIANS, P.C., by and through its officers, agents
and/or employees,
PLAINTIFFS
SPECIAL VERDICT
WORKSHEET
Index No.: 2008-9830
RJI No.: 33-09-3232
Hon. Brian F. DeJoseph, J.S.C.
Defendants.
Instructions:
1.
Five (5) jurors must agree on the answer to a question. However, the same five
(5) jurors do not need to agree on the answer to each question.
2.
If a juror disagrees with the answer of the other five (5) jurors, the juror
who disagrees must sign on the line indicated below the answer to the
question as Dissenting Juror.
3.
Answer each question in the order in which it is presented, and follow the
further instructions after the answer is given.
4.
At the end of this verdict sheet each juror must sign to certify that:
5.
[a]
the verdict sheet is accurate;
[b]
at least five jurors voted for the response provided;
[c]
all jurors participated in the deliberations.
Please proceed to the questions.
P a g e | 58
QUESTION 1:
Was the defendant, MICHAEL S. TONG, M.D., negligent with respect to his care
and treatment of Cynthia H. Shute Brown?
YES
NO
Only five jurors must agree on the answer to this question.
Dissenting Juror, If any
If the answer is Yes to Question 1, please proceed to Question 2.

If the answer is No to Question 1, please proceed to Question 3.
P a g e | 59
QUESTION 2:
Was the negligence of the defendant, MICHAEL S. TONG, M.D., a substantial

factor in causing Cynthia H. Shute Browns injuries and death?
YES
NO
Proceed to Question 3.
P a g e | 60
QUESTION 3:
Was the defendant, NORTH MEDICAL FAMILY PHYSICIANS, P.C., negligent with
respect to its care and treatment of Cynthia H. Shute Brown?
YES
NO
If the answer is Yes to Question 3, please proceed to Question 4.

If the answer is No to Questions 1 and 3, please report to the Court.
P a g e | 61
QUESTION 4:
Was the negligence of the defendant, NORTH MEDICAL FAMILY PHYSICIANS,

P.C., a substantial factor in causing Cynthia H. Shute Browns injuries and death?
YES
NO
Proceed to Question 5.
P a g e | 62
QUESTION 5:
State the percentage of fault for each of the defendants.
Michael S. Tong, M.D.
North Medical Family Physicians, P.C.
(must total 100%)
Please proceed to Question 6.
P a g e | 63
QUESTION 6:
State the amount awarded to the Estate of Cynthia H. Shute Brown for her pain and
suffering on or before her death on December 25, 2006.
If you decide not to make an award, please write the word none. Only five jurors must
agree on the answer to this question.
Regardless of your answer to Question 6, please proceed to Question 7.
P a g e | 64
QUESTION 7:
A.
Set forth the amount of pecuniary loss sustained to date by Michael Brown as a
result of the death of his wife, Cynthia H. Shute Brown, on December 25, 2006.
Total Amount
Michael Brown, Husband
$ ___________________
B.
Set forth the amount of future pecuniary loss sustained by Michael Brown as a
result of the death of his wife, Cynthia H. Shute Brown, on December 25, 2006.
Total Amount
$ ___________________
C.
P a g e | 65
Set forth the number of years Michael Brown will sustain pecuniary loss.
Total Years
___________________
P a g e | 66
SIGNATURE AND CERTIFICATION PAGE
We, the undersigned jurors, certify that:
(1)
this verdict sheet is accurate; and
(2)
at least five jurors votes for the responses provided; and
(3)
all jurors participated in the deliberations.
ALL SIX JURORS MUST SIGN BELOW:
PLEASE REPORT YOUR VERDICT.
P a g e | 67
The Author
Michael A. Bottar is a member of Bottar Leone, PLLC, a Syracuse-based law firm that
has for more than three decades represented only injured patients, motorists, workers
and consumers throughout the State of New York. Michaels trial practice centers on
medical malpractice and complex injury claims arising out of hypoxic, ischemic or
traumatic brain/nerve injuries and misdiagnoses, as well as workplace injuries,
governmental negligence, common carrier accidents (e.g., buses, trucks, trains), and
defective medical devices.
Michael is a graduate of Colgate University and is a summa cum laude graduate of
Syracuse University College of Law where he is an adjunct professor, author of the
"Civil Practice" chapter of the Syracuse Law Reviews Survey on New York, and serves
on its Board of Advisors a small panel of alumni charged with strategic advancement
of the law school's mission.
Michael is a member of the Board of Directors of the New York State Academy of Trial
Lawyers, and sits on its judicial screening committee. In connection with the Academy
and other bar associations, he lectures annually throughout New York State on medical
malpractice, personal injury and trial-related topics. Michael is also a member of the
board of directors of the Central New York Womens Bar Association and sits on its
judicial screening committee.
Michael is a member of the Board of Directors of the Onondaga Historical Association,
and is a past member of the advisory boards for the Syracuse University Law Alumni
Association, Contact Community Services, and the CNY Arthritis Foundation. In 2005,
Mr. Bottar was recognized by Human Rights First a nonprofit, nonpartisan
international human rights organization for his role in securing political asylum for a
Sierra Leonian refugee.
Michael is a past member and executive editor of the Syracuse Law Review, which
published his note titled "Robbing Peter To Pay Paul: Medicaid Liens, Supplemental
Needs Trusts and Personal Injury Recoveries on Behalf of Infants In New York State
Following the Gold Decision." He is also a past member of the Syracuse University
College of Law Moot Court Honor Society, and was inducted into the Order of the Coif,
the Order of Barristers, and the Justinian Honorary Law Society.
Michael has been named to The National Trial Lawyers: Top 40 Under 40 and to The
National Trial Lawyers: Top 100, has been selected for inclusion in New York Super
Lawyers (Upstate), and is a member of the Multi-Million Dollar Advocates Forum. He
began his legal career as a litigation associate with White & Case, LLP, in New York,
New York, and Bond, Schoeneck & King, PLLC, in Syracuse, New York.

Michael A. Bottar, Post-Trial Practice in New York State Courts: Procedure and Pitfalls

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Michael A. Bottar, Post-Trial Practice in New York State Courts: Procedure and Pitfalls

Uploaded by

Copyright:

Available Formats

Post-Trial Practice In

New York State Courts:

Michael A. Bottar, Esq.

In and For Ups tate New York . Since 1983.

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

NB: Nota Bene

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

Format of the Verdict

Polling the Jury

A. Timing for Challenge

Challenging the Verdict In Post-Trial Motions

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

Despite pattern jury instructions, court rules, and various

worksheets, deliberations can go awry in a number of ways, many of which are

FORMAT OF THE VERDICT

See New York PJI 1:95, GENERAL VERDICT, which provides:

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

Also, when wording interrogatories,

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

The manner in which a jury answered interrogatories was at issue in Marine

Interrogatories 1-10 spoke to

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

Polling The Jury

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

To put it another way, 5 or 6 signatures on a verdict sheet are no

In response, the trial court stated well, it is a

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

At the trial level, the jury concluded that neither

The request was denied and the jury was discharged.

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

See generally N.Y. C.P.L. 310.80, which provides:

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

A jurors response or non-response was at issue in Sharrow v. Dick Corp., 86

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

In Bernard, a verdict was announced by the

foreperson and the jury was polled.

Juror No. 12 stated that the foremans

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

of faulty on the wrong lines).

Courts reason that correcting the verdict is not

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

plaintiffs counsel submitted a supplemental motion to correct the verdict. As part of

As the jury was being

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

See New York PJI 1:102, GENERAL INSTRUCTION SUPPLEMENTAL CHARGE TO

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

From the limited record available, it

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

The trial court then awarded

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

The jury also concluded that the

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

In addition to directing a jury to deliberate further, a court may inquire into an

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

Post-Trial Practice In New York State Courts: Procedure and Pitfalls