R 5016.Entry of judgment.

(See also Advisory Committee notes preceding § 5001, under subheading “Entry, docketing and transcripts.”).

Subd (a) of this rule is derived from part of the first sentence of RCP 201. The subdivision omits the administrative directions to the clerk on the operation of his office specified in the remainder of the first sentence and in the second sentence of RCP § 201. The last sentence of former rule 201 related to the records to be kept by clerks and is treated in CPLR article 97.

Subd (b) of this rule is derived from CPA § 495 and is similar in approach to the first sentence of Federal rule 58. It applies only to jury trials as of right. In all other cases the decision rests ultimately with the court or referee and is governed by subd (c). Section 495 referred to entry of judgment after a general verdict only on the application of the successful party. The usual practice was for the clerk of the trial part to furnish the successful party with an extract from the minutes stating the amount and character of the verdict, which was presented to the clerk of the court where the judgment was to be entered as authority for its entry. See 7 Carmody-Wait, Cyclopedia of New York Practice 291–292 (1953). Under this subdivision either party could avail himself of that procedure since the words “Upon the application of the party in whose favor a general verdict is rendered” have been omitted. Cf. RCP 197. There may be instances in which the losing party wishes to appeal immediately and is willing to enter the judgment. Cf. CPLR § 5513(a). If the judgment debtor enters the wrong amount, the judgment creditor could move to correct the judgment. See § 5019(a). The words “[unless] it is otherwise specially prescribed by law” have also been eliminated; in such case the court would otherwise direct. No special reference to general verdicts accompanied by answers to interrogatories is required because, under rule 4111(c), if the answers are inconsistent with the verdict, the court must direct entry of an appropriate judgment. Cf. Fed R Civ P 58. Some of the issues may be separately tried without a severance. Compare CPLR § 603 and rule 5012 with rule 4011. In such case the original order of the court requiring separate trial or the order after the nonfinal verdict will make it clear that a judgment is not to be entered. See rule 4112; cf. RCP 194.

Subd (c) of this rule is patterned after the second sentence of Federal rule 58. It replaces RCP 194 through 199 and part of the first sentence of CPA § 441. Those provisions provided different procedures for the entry of judgment depending upon various factors, such as whether the case was tried by the court alone or with the aid of an advisory jury, whether there was a motion for judgment, and, if so, whether such motion involved any questions of fact. See 7 Carmody-Wait, Cyclopedia of New York Practice 287–326 (1953). They were overcomplicated, excessively detailed and unsupported by any rational basis. This subdivision involves only the practical criterion of whether the judgment is simple (i.e., where it is only for money or costs or is a denial of all relief) or complex. It is only in the latter situation that the judge or referee needs to settle or approve the form of the judgment and direct its entry by the clerk. This subdivision applies to all cases other than those tried entirely by a jury as of right. It covers cases where an advisory jury or referee to report is used (see RCP 194, 199) and those decided on a motion for judgment under CPLR rules 3211 and 3212 and § 3213, whether or not issues of fact requiring a trial arose in the same action. See RCP 195–197. Entry of default judgments, however, is governed by the special provisions of § 3215. No special treatment of a referee’s decision in a marital action (former § 1174) is required. See 7 Carmody-Wait, op cit. supra at 324. Under new rule 4312(2) only an official or special referee can determine an issue in a matrimonial action so that a judgment could not be entered by a clerk on the determination of an unofficial referee in such an action. This was the result of former § 1174. See also CPLR § 4320(b). The phrase “on motion” requires notice to every party not in default for failure to appear. See § 2212(c); cf. NJ R Civ P 4:55-1, 4:59. The former practice of the parties submitting their proposed form of judgment will be followed.

Subd (d) of this rule is taken from CPA § 478 without change of substance. The opening clause replaces the last two sentences of § 478. The first of those sentences stated that no judgment should be entered against a party who died before a verdict, report or decision was rendered. Such a statement is unnecessary under the formulation of this subdivision, since there could be no verdict or decision upon which the judgment could be based. The remainder of the subdivision is simply a rewording of the first sentence of § 478. The second sentence of that section related to liens and is treated in CPLR § 5203(a)(4). See also § 5208; introduction to this article. The similar provisions of CPA § 89 are omitted since they are covered by this subdivision and by Decedent Estate Law §§ 118 and 119, which provide for the survival of all personal injury actions after the death of a party. Section 89 provided that after “verdict, report or decision in an action to recover damages based upon a cause of action which does not survive the death of a party, the action does not abate by the death of either party”; and further stated that if the verdict, report or decision was reversed no punitive damages should have been awarded in any subsequent new trial. The section apparently related only to actions for personal injuries. It expressly so stated until 1935, when it was amended as part of the Law Revision Commission legislation concerning survival of personal injury actions; although the section was reworded and the words “for a personal injury” omitted, the Commission’s report indicates that no change in this respect was intended. See Law Rev Comm’n Rep 166 (1935). The 1935 legislation provided, in Decedent Estate Law §§ 118 and 119, for the survival of all personal injury actions after the death of either party, except actions based on breach of promise to marry, seduction, criminal conversation and alienation of affections. See id. at 161, 162. With the abolition of these actions (see CPA §§ 61-a– 61-i), Decedent Estate Law §§ 118 and 119 became applicable to all personal injury actions, making redundant the provision in CPA § 89 for survival in the limited situation where the death occurred after verdict, report or decision. See 2 Carmody-Wait, Cyclopedia of New York Practice 97 (1952). The limitation in section 89 which concerned punitive damages on a new trial is also covered by Decedent Estate Law §§ 118 and 119.

Subd (e) of this rule is based upon RCP 187. It relates the first sentence of that rule. The second sentence of the former rule which stated that a referee, required to be appointed by the interlocutory judgment, must have been appointed by the judgment or by order on motion is omitted as unnecessary. Cf. CPLR article 43, and particularly rule 4311. The second sentence of CPA § 441 is also omitted. Like the provisions replaced by subd (c) of this rule, that sentence was a model of unnecessary procedural detail. A court possesses the power, without such specific authorization, to direct a final judgment conditional upon compliance with specified terms or directions; and whether such an order or interlocutory judgment is called for in a particular case is entirely within its discretion. Where an interlocutory judgment does direct such a conditional final judgment, the motion authorized by this subdivision is unnecessary. Cf. RCP 196. Moreover, the primary purpose of the second sentence of § 441, added to the Throop Code in 1879, appeared to have been to meet a problem of appealability of the decision on a demurrer (see Code Civ Proc § 1021, note (Throop ed 1890)) which would not arise under the appeals provisions of the new CPLR. See § 5701(a)(2).

Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1970, ch 93, eff Sept 1, 1970.