There are numerous post-trial motions that one can utilize under the CPLR when faced with an unfavorable verdict.

By Andrea M. Alonso and Kevin G. Faley

December 13, 2019

There are numerous post-trial motions that one can utilize under the CPLR when faced with an unfavorable verdict. The following are examples of the different types of post-trial motions that are available to litigants after trial.

Post-Trial Motions, Generally

Once the jury has rendered its verdict, the parties must immediately consider post- trial motions. Post-trial motions are governed by CPLR Article 44. After a jury verdict, a court can set aside the verdict and either: (1) direct entry of judgment in favor of any party as a matter of law; or (2) order a new trial.

CPLR 4404(a) states that “after a trial of a cause of action or issue triable of right by a jury … the court may set aside a verdict [or] it may order a new trial of a cause of action … where the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree being kept together for as long as is deemed reasonable by the court.”

How Many Motions?

After the jury is excused and the verdict or decision has been rendered, a party can make an oral motion. Additionally, a party is also entitled to make only one written motion. CPLR 4406 states, “in addition to motions made orally immediately after decision, verdict or discharge of the jury, there shall be only one motion under this article.” Further, a party must “raise by motion or by demand under rule 2215 every ground for post-trial relief available.”

When Does the Post-Trial Motion Have to Be Made?

Pursuant to CPLR 4405, a motion “shall be made before the judge who presided at the trial within fifteen days after decision, verdict or discharge of the jury.” In the event that the motion is made after the fifteen days, it is within the court’s power to exercise discretion when a parties’ motion is untimely upon showing of good cause.

A court can direct a briefing schedule, or it is not uncommon for a party to request additional time to make a written motion. Additional time can allow a party to obtain the full transcript, review evidence and exhibits and to cite to the record in support of its motion.

Inconsistent Verdict

An inconsistent verdict occurs when “the jury’s verdict on one claim negates an element of another cause of action.” Post-Trial Motion for Judgment or a New Trial in New York State Supreme Court, Practical Law Practice Note w-006-3862. A party challenging the verdict as inconsistent must raise the challenge before the jury is discharged and cannot be a ground for dismissal upon a written post-trial motion. For example, in Palmer v. Walters, the jury “apportioned fault 25%” against plaintiff after previously finding that plaintiff’s negligence was not a substantial factor. Accordingly, the court ordered a new trial because the jury’s verdict was internally inconsistent.” 29 A.D.3d 552 (2005).

Additionally, if a party moves at trial based on an inconsistent verdict, the court must either direct reconsideration by the jury or order a new trial. Kelly v. Greitzer, 83 A.D.3d 901 (2011). Upon reconsideration, the jury is free to alter its original finding to conform to its real intention. The jury is also not bound by the original verdict.

Judgment as a Matter of Law

In order for a party to succeed in a motion pursuant to CPLR 4404(a), the court must determine that the verdict is not supported by legally sufficient evidence. For a judgment as a matter of law, otherwise formally known as a directed verdict, the court concludes that there is simply no valid line of reasoning and permissible inferences that could possibly lead rational jurors to the conclusion it reached based upon the evidence at trial.

In Rivera v. Greenstein, plaintiff alleged that the defendant doctor “departed from good and accepted medical practice.” 79 A.D.3d 564 (2010). A verdict was returned for plaintiff. Defendant then filed a motion for a judgment notwithstanding the verdict; however, the motion was denied. Defendant appealed the denial of the motion, and on appeal the judgment was reversed because “plaintiffs failed to present evidence from which jury could find that defendant doctor departed from accepted standards of medical practice.” Id. at 564.

Motion Based Upon Weight of the Evidence

A party can also make a motion based upon the weight of the evidence. To succeed on this motion, it must be shown that the evidence so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence.

In Liyanage v. Amann, a jury verdict was rendered for plaintiff on a medical malpractice claim. 128 A.D.3d 645 (2015). However, defendant was granted a new trial because plaintiff’s “testimony together with the conflicting evidence” weighed so heavily in favor of the defendant that a “jury could not have reached the verdict by any fair interpretation of the evidence.” Id. at 648.

Motion Based Upon Juror Confusion

A party can base a motion on juror confusion. Unlike a motion based upon an inconsistent verdict, which must be made before the jury is discharged, a litigant can argue in a written post-trial motion that the verdict should be set aside based upon juror confusion. For example, in Rodriguez v. F.D.R. Temple Assocs., the court remanded the matter due to an inconsistent verdict. 886 N.Y.S.2d 542, 543 (App. Term 2009). “The jury verdict was internally inconsistent in that it attributed 15% and 25% fault to Con Edison and plaintiff, respectively, despite having found that their negligence was not a substantial factor in causing the accident.” Id.

In the Interest of Justice

A court can order a new trial in the interest of justice when “substantial justice” has not been done. In considering such a motion, the court, in deciding whether “substantial justice” has been done, must decide whether “it is likely that the verdict has been affected and must look to his own [or her] common sense, experience, and sense of fairness rather than to precedents in arriving at a decision.” Morency v. Horizon Transp. Servs., 139 A.D.3d 1021, 1023 (N.Y. App. Div. 2016) (quoting Micallef v. Miehle Co., Div. of Miehle-Gos Dexter, 39 N.Y.2d 376 (1976)).

One such example of the court exercising its discretion is the use of inflammatory comments by counsel. In Rodriguez v. City of New York, defense counsel stated that plaintiff was “totally incredible” and even described plaintiff as “kind of a tweaker.” 67 A.D.3d 884 (2009). Defense counsel went on to exclaim, “what a liar,” and then finished with “[i]t’s not a lottery. It’s not a game. It’s not ‘here’s the American dream, come over here, fall off a scaffold, get a million dollars.’” Id. at 885. Plaintiff filed a CPLR 4404(a) motion to set aside the verdict in the interest of justice and as inadequate; on appeal, plaintiff’s 4404(a) motion was granted.

Another example of a motion ordering a new trial in the interest of justice is when there is excessive intervention by the court. In Porcelli v. N. Westchester Hosp. Ctr., a new trial was granted due to the trial justice’s excessive intervention. 110 A.D.3d 703, 706 (2013). More specifically, there was “repeated conflict between the court and the plaintiff’s counsel.” Id. at 703. The trial justice “interrupted, patronized, and admonished” the plaintiff’s counsel. Id. The trial justice went as far as to tell plaintiff’s counsel to “go review the books tonight” in front of the jury. Also, during a sidebar conference, the trial justice said to plaintiff’s counsel that she would not “allow the reporter to take any words from you at this point because I don’t think that you are going to do any service to yourself, the type of emotional tantrums that you have been having.” Id.

Motion Based Upon Cumulative Evidentiary Errors

A new trial can be ordered when there are cumulative evidentiary errors. For example, in Palmer v. Walters, the jury concluded that the defendant’s negligence was not the “substantial factor in causing the accident.” However, the jury returned a verdict that indicated that the defendant was 33% negligent. 29 A.D.3d 552 (2005).

The court stated that “the jury’s initial verdict was internally inconsistent in that it attributed 33% of the fault for the happening of the accident to” the defendant despite finding that his negligence was not a substantial factor. Id. As a result of this inconsistency, the court ordered a new trial. Id. at 552 (holding that “[w]hen a jury’s verdict is internally inconsistent, the trial court must direct either reconsideration by the jury or a new trial.”).

Motion Based on Error in Jury Charge

Courts have also granted a motion for a new trial in the interest of justice when there has been error in the jury charge. For example, in Piotrowski v. McGuire Manor, the court held that a reversal of the original judgment and a new trial was necessary in order to comport with notions of fair justice. Here, it was concluded that the jury charge was inadequate when the court failed “to give an expanded charge with respect to the sole proximate cause defense.” Further, due to the error in jury charge, the court concluded that according to the facts of this case, not including the sole proximate cause defense, “resulted in a substantial right of defendant being prejudiced”; therefore a new trial was granted. 117 A.D.3d 1390, 1392 (2014).

Inadequate or Excessive Damages

Inadequate or excessive damages can be the sole ground in a post-trial motion or can be raised in conjunction with other grounds. An award of damages should only be set aside when it deviates materially from what would be reasonable compensation. Harrison v. New York City Tr. Auth., 113 A.D.3d 472, 476 (1st Dept. 2014). What is more, if courts find that damages are excessive, the court must order a new trial on damages unless the plaintiff stipulates to the decreased amount. Bock v. City of Mount Vernon, 123 A.D.3d 644 (2d Dept. 2014). Lastly, if the court finds that damages are inadequate, “the proper procedure … is to order a new trial on damages unless the defendant stipulates to the increased amount. Rajeev Sindhwani, M.D. v. Coe Bus. Serv., 52 A.D.3d 674, 677 (2008).

Post-Judgment Motion

CPLR 5015(a) states that the court that rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of newly discovered evidence. More specifically, newly discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under CPLR 4404. Also, in seeking relief under this provision, movant has to show that newly discovered evidence could not have been discovered previously with the exercise of due diligence and would have not changed the result of trial.


When the verdict is not what a party expected, a party can consider the aforementioned motions: inconsistent verdict, motion based upon weight of the evidence, motion based upon juror confusion, in the interest of justice, motion based upon cumulative evidentiary errors, motion based on error in jury charge, inadequate or excessive damages. By moving pursuant to CPLR 4404, parties can redeem themselves from an unfavorable outcome.

Andrea M. Alonso and Kevin G. Faley are partners in the firm of Morris Duffy Alonso & Faley.
Ryan Iglesias, a paralegal, assisted in the preparation of this article.

Reprinted with permission from the December 19, 2019 edition of the New York Law Journal © 2019
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