Preserving Error For Appeal

The decisions made by the trial attorney during the trial are influenced by the events as they unfold, and also by the foresight to protect issues for the record, should an unfavorable verdict result in an appeal. At trial, an attorney may decide to strategically hold off on an objection when testimony appears to be moving along favorably. Perhaps, an objection is withheld based upon off-the-record discussions with the judge or objections made at a sidebar that never become part of the record. The Court of Appeals has held, “when a timely objection is not made, the testimony offered is presumed to have been unobjectionable and any alleged error considered waived.” Horton v. Smith, 51 N.Y. 2d 798,799, 433 N.Y.S.2d 92, 93, 412 N.E.2d 1318, 1319 (1980).

CPLR Section 4017 requires an attorney to make objections at the time of the ruling or order and sets forth that a failure to make known the objections may restrict review upon appeal. The burden falls upon the trial attorney to make objections and preserve the record of the trial in the event that the matter is taken on appeal. Preserving the trial record for appeal includes the motions made at the end of trial upon reading of the verdict.

At the time of verdict, the trial attorney must be ready with motions to set aside the verdict as soon as an unfavorable verdict is in. The CPLR Section 4405 requires that post-trial motions are to be made before the judge who presided at the trial within fifteen days after the decision, verdict or discharge of the jury. Motions are made orally immediately after the verdict to the trial judge. In addition to making an oral motion immediately after the rendition of the verdict, a litigant, within 15 days of the date of the verdict, may make a written motion for such relief. CPLR 4405, 4406; Casey v. Slattery, 213 A.D.2d 890,891, 623 N.Y.S.2d 942,943 (3rd Dep’t. 1995). Only one written motion is permitted arising from the verdict or court decision and each party shall raise every ground for post-trial relief then available to him. CPLR 4406.

On a practical level, following oral application of the post trial motions, a request for permission to submit the post-trial motion on paper should be made. The oral application preserves your motion to set aside the verdict, while submitting the motion on papers allows the trial attorney the opportunity to make a comprehensive post-trial motion after leaving the courthouse and reflecting on the evidence, testimony and court rulings. It is best to inform the court of your intentions to submit the motion on papers, so that the court does not render a decision based only on the oral application. Further, the judge may permit a submission date beyond the fifteen days. If the court permits additional time in which to file a post- trial motion on paper, the attorney must adhere to this directive or the motion will be deemed abandoned.

If the post-trial motion is not made within the fifteen days, the motion can still be made with a showing of good cause. CPLR 2004; Pioli v. Morgan Guar. Trust Co. of N.Y., 199 A.D.2d 144, 148, 605 N.Y.S.2d 254 (1st Dept. 1993); Casey, 213 A.D.2d at 891. While motions such as those to set aside the verdict as against the weight of the evidence or as excessive are controlled by fifteen day time limit of CPLR 4405, a motion to address an inconsistent verdict is waived if it is not made prior to the discharge of the jury. Barry v. Manglass, 55 N.Y.2d 803, 806,447 N.Y.S.2d 423, 432 N.E.2d 125 (1981).

The Second Department has held that a several months delay in submitting a post-trial motion to set aside the verdict was untimely. Nolfo v. Nolfo, 188 A.D.2d 451, 590 N.Y.S.2d 902 (2nd Dep’t 1992)(October 30, 1991 verdict and a December 6, 1991 motion deemed untimely pursuant to CPLR 4405); Rapport v. Flushing Savings Bank, 266 A.D.2d 197, 698 N.Y.S.2d 496 (2nd Dep’t 1999). (Five month delay in bringing post trial motion was untimely). Even a three day delay in bringing the post trial motion required a showing of good cause. Johnson v. Suffolk County Police Department, 245 A.D.2d 340, 665 N.Y.S.2d 440 ( 2nd Dep’t 1997). It is up to the discretion of the trial court as to whether the court will permit an untimely motion. The appellate review of such a determination by the trial court is whether or not the court improvidently exercised its discretion in considering the untimely motion. Steinberg v. State Farm Mutual Automobile Insurance Company, 181 A.D.2d 766, 581 N.Y.S.2d 87 (2nd Dep’t 1992).

When an oral application to set aside the verdict has been made, and the Supreme Court suggests or directs the submission of papers on the motion by a date certain, if the movant never submits papers, the motion will be deemed abandoned by the movant. A conclusion that the motion has been abandoned will prohibit an appeal of the post-trial motion. No appeal can be taken of the post-trial motion, as no motion was made which would result in an appealable order. CPLR 5512. Plantation House & Garden Products, Inc. v. R-Three Investors, 285 A.D.2d 539, 728 N.Y.S.2d 181 (2nd Dep’t 2001); Acovangelo v. Brundage, 271 A.D.2d 885, 706 N.Y.S.2d 757 (3rd Dep’t 2000). In that instance, the judgment will still be the subject of an appeal, however, the post- trial motion would be abandoned.

Another motion at the time of verdict includes a defendant’s motion for a collateral source hearing in personal injury, injury to property, wrongful death, medical, dental and podiatric malpractice cases. CPLR Section 4545 discusses the admissibility of collateral source payments which offset the cost of medical care, dental care, podiatric care, custodial care, rehabilitation services, loss of earnings or other economic loss which was or will be reimbursed or indemnified by collateral sources such as insurance, social security, workers compensation and others as set forth in that section. The failure to timely request a collateral source hearing constitutes a waiver of the right to seek an offset for collateral source payments. Ventriglio v. Active Airport Service, Inc. 257 A.D.2d 657, 682 N.Y.S.2d 915 (2nd Dep’t 1999).

Equally important, where a monetary verdict has been rendered against your client, an application must be made to the Court for a stay of execution and entry of judgment pending the post-trial motions. Absent a request for a stay, the victorious party may enter judgment in the amount of the verdict which can be enforced. If the court’s decision on the post-trial motion sets aside or reduces the original verdict, the party having paid the enforced judgment would now be forced to seek restitution. Once a decision on the post-trial motion has been rendered, an application should be made to the trial judge requesting a further stay of entry of the judgment. This will allow time for consideration of whether an appeal of the judgment will be taken. It will also permit time to obtain a bond or undertaking, if necessary, to avoid execution of the judgment pending appeal. CPLR Section 5519 provides for a stay without court order upon service of a notice of appeal or an affidavit of intention to move for permission to appeal. This CPLR Section provides for a stay of all proceedings to enforce the judgment or order appealed from pending the appeal or a decision on a motion for permission to appeal. Requesting a stay from the trial court following the post-trial motion decision, provides additional time for a party to consider the merits of taking an appeal of the trial judgment and make a decision whether to pursue appellate review of the trial without the threat of enforcement of a monetary judgment.

There are a multitude of issues that arise at the trial level that take on a new life when the Record on Appeal is scrutinized by the appellate counsel. Protecting those appellate issues with well-placed objections during the trial is a balancing act of extraordinary proportions. A Dean’s Hour will be held on October 29, 2002 from 12:30 to 2:00 p.m. discussing these very issues. The extensive experience and perspective of a trial attorney, Raymond Furey, will be joined by the expertise of appellate counsel, Kenneth Mauro, and comments from Appellate Division Justice Leo F. McGinity, to make this an informative Dean’s Hour.

The author is the Chairperson of the NCBA Appellate Practice Committee, and is associated with the Mineola Law Firm of Furey Kerley Walsh Matera & Cinquemani