R 4404.Post-trial motion for judgment and new trial

This rule and rules 4405 and 4406 are designed to unify the former motion for new trial with that for judgment notwithstanding the verdict or decision. To some extent, unification of provisions applicable to actions triable by the court and those triable by the jury has been achieved. In 1951, CPA § 549, which governed motions for new trial before the trial court, and § 550, which governed motions for new trial in the appellate court, were amended to include court trials as well as jury trials; and § 551, which governed the motion in the appellate court after an interlocutory judgment, was amended to include actions tried by a jury, as well as those tried by the court. Laws 1951, c. 218; see 17 NY Jud Council Rep 183–192 (1951). The amendment also added a provision which created a procedure in actions triable by the court analogous to judgment notwithstanding the verdict. This provision was contained in the last paragraph of § 549. Previously, a time difference between motions for judgment notwithstanding the verdict, under subd 3 of § 457-a, and motions for new trial, under § 549, had been eliminated. Laws 1949, c. 604; see RCP 60-a (added in 1951). This rule and rules 4405 and 4406 create a single motion for a new trial or judgment notwithstanding the verdict or decision, in addition to an oral motion made at the trial. All post-trial relief formerly sought by separate motions must be considered on the single motion or a cross-motion heard simultaneously. The motion for new trial in the appellate court in CPA §§ 550 and 551 was, in effect, a preliminary appeal; that procedure was seldom used and has been omitted. The motion made in the first instance at Special Term under § 552 has also been eliminated. Grounds which might formerly have been raised either before the trial court under § 549 or at Special Term, as well as those which might only have been raised at Special Term, are included in this rule. Under former practice, grounds which were urged at the trial could not be reheard at Special Term. Jacquin v Syracuse Auto R. & T. Corp. 263 NY 53, 188 NE 154 (1933). Thus, the major effect of eliminating the motion at Special Term would be to shorten the time in which a motion may be made. It should also be noted that those grounds for the motion which might only have been raised at Special Term were to some extent available as grounds for a motion to set aside the judgment under §§ 521–529 of the civil practice act. Under this rule as well, they form a basis for relief from a judgment under provisions of article 50 on judgments. Cf. Fed R Civ P 60(b). In jury trials, a motion for judgment during trial was formerly a prerequisite for judgment notwithstanding the verdict. CPA § 457-a(3). That requirement has been abolished, eliminating a distinction between actions tried by the jury and those tried by the court. Subd (a) and (b) of this rule specifically empower the court to grant partial new trials in all actions, thus clarifying a situation created by “conflicting decisions [which render] . . . it impossible to determine with certainty the present state of the law in New York on partial new trials.” 17 NY Jud Council Rep 197–98 (1951). The words “judge” and “court” in subd (b), and rule 4405 encompass a referee to determine by reason of § 4318.

Subd (a) of this rule governs the relief which may be granted by the trial court after a required trial by jury. It includes judgment notwithstanding the verdict, formerly covered by subd 3 of CPA § 457-a, and new trial, formerly covered by §§ 463, 549 and 553. See also CPLR § 4113(b). Judgment notwithstanding the verdict might formerly have been granted only upon renewal or reconsideration of a motion for judgment made at the close of all the evidence. CPA § 457-a. Failure to make or renew a motion for directed verdict at the close of all the evidence was considered to be an admission that there was a question of fact for submission to the jury, which barred a claim after verdict or on appeal that the action was improperly submitted. Gelardin v Flomarcy Co. 293 NY 217, 56 NE2d 558 (1944). The court unable to grant judgment notwithstanding the verdict for want of a motion for directed verdict made at the close of all the evidence, was compelled to direct a new trial. See Buxhoeveden v Estonian State Bank, 279 App Div 1089, 112 NYS2d 785 (2d Dept 1952). The motion at the close of the evidence was a mere formality which did not give either the court or litigants any fair notice in time to cure defects. It seemed only a trap for the unwary or inadvertent which should not be an absolute condition for judgment notwithstanding the verdict. Under this subdivision, the court is specifically empowered to grant partial new trials after verdict. In New York, the right to grant a partial new trial was recognized by statute in actions where the parties are not entitled to trial by jury. CPA § 553; Cf. NY Surr Ct Act § 309; see Warner v State, 297 NY 395, 79 NE2d 459 (1948); Verstanding v Schlaffer, 296 NY 997, 73 NE2d 573 (1947), modifying 296 NY 62, 70 NE2d 15 (1946). In actions triable by a jury, the CPA also specifically recognized the court’s power to grant a partial retrial where the jury had disagreed on some of the issues. CPA § 463. There was no other statutory provision on partial retrials. The Judicial Council, concluding that the law of New York on partial new trials was “impossible to determine” from the decisions, considered the “probable” state of the law as permitting a new trial as to separate and distinct causes of action or parties but prohibiting retrial of separable issues. 17 NY Jud Council Rep 197–98 (1951). In most other jurisdictions, retrial of one or more separable issues may be granted with or without specific statutory authorization. See, e.g., Fed RCP 59(a); NJ RCP 4:61-1(a). Legislation empowering trial and appellate courts to grant partial new trials has repeatedly been proposed in New York. Some of the proposals are summarized in 17 NY Jud Council Rep 194–95 (1951). Although the Judicial Council considered the practice to be advantageous, it did not include its own proposals to authorize partial new trials among its recommendations. Id. at 78–79. Under this subdivision, the court is given discretion to order an entire or a partial new trial where a finding respecting a cause of action or a separable issue is erroneous. Although it has been proposed (see, e.g., 1 Report of the Board of Statutory Consolidation on the Simplification of the Civil Practice of New York 134–35 (1915)), retrial limited in all cases to issues erroneously decided seems unwise. Where one or more findings are the result of prejudice, the attitude of the jury may have affected their consideration of the entire case. Thus, excessive damages may indicate that a finding of liability was influenced by undue sympathy for the plaintiff. Similarly, an inadequate verdict may be the result of a compromise by members of the jury who were convinced that there was no liability. Accordingly, the court under this subdivision may order an entire new trial where it considers that error in some findings may have tainted others or where issues are interrelated. Cf. Bernstein v Bernstein, 132 NYS2d 516 (Sup Ct 1954).

Nevertheless, there remain many instances where a partial new trial would be warranted and the power to limit retrial to one or more issues would lighten the burden on courts and litigants. It may also provide an alternative to the widely-used practice of denying a new trial on condition that the plaintiff accept smaller, or the defendant pay larger, damages. Cf. O’Connell v Papertsian, 309 NY 465, 467, 131 NE2d 883, 884 (1956). There does not appear to be a valid constitutional objection to partial new trial in cases required to be tried by jury. Prior jury trial of presumably dispositive issues—i.e., separate trials of separate issues—was authorized by CPA § 443, which has been held to be constitutional. Smith v Western Pac. R.R. 203 NY 499, 96 NE 1106 (1911). While the New York cases do not expressly discuss the constitutional issue, such procedures as jury trial of the damage issue after liability has been found on a motion for summary judgment indicate that partial new trial would be sustained. See 17 NY Jud Council Rep 201 (1951). The practice has been held to be constitutional in other jurisdictions. See Gasoline Prod. Co. v Champlin Refining Co. 283 US 494 (1931), and cases there cited.

This subdivision also broadens the power of the court to grant post-trial relief on its own initiative. While courts have inherent power to grant new trials before or after verdict (7 Carmody-Wait, Cyclopedia of New York Practice 101 (1953)), judgment notwithstanding the verdict might not have been granted on the court’s own initiative unless it had expressly reserved decision on a prior motion for directed verdict. CPA § 457-a(3). The purpose of the latter rule was to avoid prejudice to the party in whose favor the verdict was rendered. If the court acts on its own initiative after having denied a motion for directed verdict at the trial, the argument goes, a party may be deprived of notice and an opportunity to present arguments in support of the verdict. See 15 NY Jud Council Rep 259–261 (1949). It seems unlikely that any court would deny such a party the right to be heard on the matter. Normally the question will be raised by motion of the party who lost on the trial (see rule 4406) and an opportunity to oppose the motion will be afforded. In any event, a motion for reconsideration is possible. The possibility of a failure of justice was greater under the former rule where the judge must have pronounced the formal words “decision reserved” or have lost his power to act on his own initiative.

Subd (b) of this rule includes all relief which might have been granted in court trials under CPA § 549. Cf. Fed R Civ P 52(b). Although § 549 provided only for a motion for new trial, it permitted the court to direct judgment for the moving party. This subdivision specifically provides, as does Federal rule 59(a), that the court may set aside a judgment if one has been entered; this power was implicit in CPA § 554.

Formerly § 4404, add, L 1962, ch 308; amd, L 1962, ch 315, § 1, eff Sept 1, 1963.