At 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.
R 4402.Motion for continuance or new trial during trial
Article 44. Trial Motions · Last amended 1963 · Last verified July 21, 2026
In one sentenceAt any point during trial, the court can grant a continuance or order a new trial on any party's motion when the interest of justice calls for it, on terms that are fair to everyone involved.
Full Text of CPLR 4402
Plain-English Summary
CPLR 4402 gives the trial court a flexible, mid-trial escape valve. Rather than push forward with a trial that has gone wrong, because of a surprise development, a curable gap in the proof, or some other problem, any party can ask the court to pause the trial with a continuance or scrap it and start over with a new trial.
The standard is the interest of justice, and the court sets whatever terms are just when granting the relief. This rule works alongside CPLR 4401: where a 4401 motion for judgment would otherwise succeed because of a defect in the proof, CPLR 4402 gives the court a middle path, letting the trial continue instead of ending it outright.
Frequently Asked Questions
Can a party ask for a mistrial in the middle of a New York trial?
Yes. CPLR 4402 lets the court, on a party's motion, order a new trial at any point during the trial when the interest of justice requires it.
What is the difference between a CPLR 4402 motion and a CPLR 4401 motion?
CPLR 4401 asks the court to decide a claim as a matter of law; CPLR 4402 instead asks the court to pause or restart the trial, often to give a party the chance to fix a problem in its case.
Can the court set conditions when it grants a continuance under CPLR 4402?
Yes. The rule allows the court to grant a continuance or new trial on such terms as may be just.
Can a referee to determine hear a CPLR 4402 motion?
What was CPLR 4402 relief formerly called in New York practice?
It corresponds to what practitioners once called a motion for withdrawal of a juror, better known as a motion for a mistrial.
Advisory Committee Notes
This rule is based upon the general pattern of former law. It makes unnecessary subd 2 of RCP 166 which gave the court the power to refuse dismissal where a defect in evidence might have been supplied and it qualifies new rule 4401 which provides for a motion to dismiss. The relief is the same as that formerly available upon a motion for withdrawal of a juror—i.e., motion for a mistrial. 6 Carmody-Wait, Cyclopedia of New York Practice 746–751 (1953). Under § 4319 a referee to determine has the same power as the court to hear the motion and grant relief.
Amendment History
Formerly § 4402, add, L 1962, ch 308; amd, L 1962, ch 315, § 1, eff Sept 1, 1963.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
Also known as: motion for a mistrial New Yorkcontinuance during trial CPLRnew trial motion during trial New Yorkinterest of justice continuance