R 4403.Motion for new trial or to confirm or reject or grant other relief after reference to report or verdict of advisory jury

This rule unifies provisions respecting court action after trial by an advisory jury or a referee to report. Under former law, the procedure after verdict of an advisory jury differed from that after a reference to report.

Following verdict of an advisory jury, CPA § 553 permitted a motion for a new trial on the judge’s minutes (see CPA § 549), in the appellate court with the permission of the trial court (see CPA § 550) and at Special Term. See CPA § 552. The motion at Special Term must have been at the term where any other issues in the action were tried or at the term at which a motion for judgment in the action was made. RCP 221. Following a referee’s report, the motion for a new trial might have been made only at Special Term; it must have been made prior to further trial or to the hearing of a motion for final judgment. CPA § 556.

Where issues had been submitted to a referee to report, under former rule 170, either party might have moved: the prevailing party might have moved for confirmation, his opponent might have asked the court to reject the referee’s report in whole or in part or might have opposed the motion to confirm. Rule 170 somewhat ambiguously stated that “after the report is filed either party may move thereon, on notice to all parties interested.” The First Department had interpreted this clause as requiring a motion although it acknowledged that in practice the courts had been acting on their own initiative. Rosenfield v Rosenfield, 272 App Div 547, 74 NYS2d 82 (1st Dept 1947). There was no motion, under former practice, to confirm an advisory jury’s verdict.

A motion for judgment after an advisory jury’s verdict was required only where the last issues to be tried in the action had been submitted to the jury; it might have been made by either party. RCP 194(1). If issues remained to be tried by a court or referee to determine, after trial of such issues the court or the referee directed judgment on the entire action. Id. 194(2). Provisions respecting a motion for judgment after a reference to report were similar to those for motions after an advisory jury: a motion for judgment was required when no issues remained to be tried. Id. 195, 199.

This rule eliminates the separate motions for confirmation, new trial and judgment which were permitted under former practice and uses the same practice for both advisory juries and referees to report. Unless further trial is required, upon granting a motion for confirmation, the court will render decision on all issues in the action. Where further trial is required, the court may either grant a motion for confirmation or to reject, confirm or reject the report or verdict on its own initiative, or proceed with the trial before a motion is made and confirm or reject the findings of the referee or of the advisory jury in its decision on the entire action.

The decision of the court, whether rendered upon granting a motion for confirmation or to reject or after further trial, is governed by CPLR § 4213 and must be rendered within sixty days after the close of the evidence or within sixty days after a motion under this section, whichever is later. The decision is subject to a post-trial motion pursuant to rule 4404. Thus, theoretically, a party could raise objections to findings of a referee to report or an advisory verdict which are incorporated in the court’s decision even though he raised them by a motion to confirm or reject. See notes to rule 4406. If so raised, however, the court may refuse to consider them on the ground that it has previously done so.

The time limitation in this section is the same as that provided for post-trial motions under rule 4405. However, the period may be shorter, where further trial in the action is scheduled. These motions should not be permitted to delay expeditious trial of the remaining issues.

Formerly § 4403, add, L 1962, ch 308; amd, L 1962, ch 315, § 1, eff Sept 1, 1963.