In New York, overturning a jury verdict or getting a new trial is hard without preserved errors. Courts usually require objections during trial, but they can reverse “in the interest of justice” for serious mistakes or injustices, in both civil and criminal cases.
A party who has suffered defeat at the hands of a jury and seeks a new trial will rarely succeed if their only argument is that the verdict is against the weight of the evidence.
Despite its broad power to “review questions of law and questions of fact on an appeal from a judgment” (CPLR §5501[c]), the Appellate Division is reluctant to usurp the jury’s role as trier of the facts.
It is, therefore, necessary for an appellant hoping to overturn an adverse result below and obtain a new trial to point to specific trial errors which the Appellate Division, if persuaded that an injustice was done, can assign as its reason for reversing and granting a new trial.
Reversible errors are often found in rulings by the trial judge on the admission or exclusion of evidence, the court’s jury instructions and its rulings on requests to charge.
As a general rule, trial errors will be deemed waived unless at “the time a ruling or order of the court is requested or made,” the party shall have objected or made known the action he or she requests the court to take. (CPLR §4017).
Failure to do so “may restrict review upon appeal.” See CPLR §5501(a)(3) and (4).
In the case of a charge, CPLR §4110-b is even more explicit. “No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating the matter to which he objects and the grounds of his objection.”
While failure adequately to protect the record below can lead to an unjust result, all four Departments of the Appellate Division have always recognized that “[c]ourts of justice exist for the purpose of securing a fair determination of controversies.” Nicholas v. Rosenthal, 283 App.Div. 9, 13, 126 NYS2d 34, 37 (1953)(“Though no motion for mistrial was made and no exception taken to the conduct of counsel, where, as here, this court is satisfied that a verdict may have been induced by conduct creating and calculating to create prejudicial misapprehension, mistake or false impression on the part of a jury, such verdict may not be permitted to stand.”).
If the Appellate Division sees the merit to appellant’s case, and that a plain injustice was done, it possesses the power to take cognizance of trial errors even though they were not objected to, and to reverse and order a new trial “in the interests of justice.”
The Court of Appeals has no such power. It may not address issues that were not preserved by an objection in the trial court. Merrill v. Albany Medical Ctr. Hosp., 71 NY2d 990 (1988).
“[W]here [an] error is so fundamental as to preclude consideration of the central issue upon which the claim of liability is founded, the court may, in the interests of justice, proceed to review the issue even in the absence of objection or request [to charge].” Pivar v. Graduate School of Figurative Art of N.Y. Academy of Art, 290 AD2d 212, 213, 735 N.Y.S.2d 522 (1st Dept. 2002); Iaunow v. Hearns, 117 AD2d 992, 499 NYS2d 537, 537 (4th Dept. 1986)(“While plaintiff failed to preserve this issue for review, we reach it in the interest of justice.”).
In Rivera v. W. & R. Service. Station, Inc., 34 AD2d 115, 116, 309 NYS2d 274 (1st Dept. 1970), Justice Owen McGivern, writing for the majority, described the case as the court viewed it: “[N]early seven years after the accident, we have for review a worthless judgment held by two innocent victims of an auto accident, in an auto age, found by a jury to be free of any contributory negligence.”
Plainly, the court was not going to permit such a result to stand. It found prejudicial errors in the charge and reversed and ordered a new trial, writing:
“Now, it may be urged that the plaintiffs are beyond appellate help. Their attorney stood mute in the presence of the court's charge. He made no requests. Neither did he note an exception.
But the cases are not few where, even though an exception not be taken, if the error is of such a fundamental character and the resultant injustice so egregious, that an appellate court will take hold of it in the general exercise of the court's power to reverse and grant a new trial in the interests of justice.” (34 AD2d at 117).
The same standard for reviewing unobjected to errors below has similarly been expressed by the Appellate Division in the other three departments. See, e.g., Caceres v. New York City Health & Hospitals. Corp., 74 AD2d 619, 620, 425 NYS2d 36 (2d Dept. 1980)(“Although we are cognizant of appellant's failure to accept to the court's charge,... where the error is ‘fundamental’ and the resultant injustice ‘egregious’, we may nevertheless consider the error in the general exercise of our power to reverse and grant a new trial in the interest of justice.”); Vallone v. Saratoga Hosp., 141 AD3d 886, 890, 35 NYS3d 544, 547 (3d Dept. 2016)(“this court may exercise its discretion to order a new trial when an unpreserved error in a jury charge is fundamental—that is, ‘so significant that the jury was prevented from fairly considering the issues at trial’”); Antonucci v. Town of Irondequoit, 81 A2d 743, 744, 438 NYS2d 417 (4th Dept. 1981)(“Although the defendant's failure to object to the charge would ordinarily be deemed a waiver…, where, as here, the error is fundamental and relates to the key factual issue, i.e., whether there was probable cause, the court is constrained to reverse in the interest of justice.”).
In Gubitosi v. Hyppolite, 188 AD3d 1015, 1016, 136 NYS3d 109, 112 (2d Dept. 2020), “defendants failed to preserve for appellate review their contention that a new trial was necessary based on the plaintiff's revelation for the first time at trial that he had injured his neck approximately a year and a half before the subject accident. Nonetheless, we review this contention in the interest of justice.”
The Appellate Division found “plaintiff's failure to disclose his prior neck injury prejudiced the defendants, as causation was a central issue in the damages trial, and the defendants had no opportunity to cross-examine the plaintiff's expert about the prior injury because only the pre-recorded videotaped testimony of that expert was presented at trial.”
The Appellate Division’s broad scope of review extends to instances where there has been a failure to appeal from a portion of an order. In Foley v. Roche, 68 AD2d 558, 564, 418 NYS2d 588 (1st Dept. 1979), the court stated:
“Ordinarily, appellate review is confined to the part of the order appealed from… However, we have held that where the portion of an order appealed from is ‘inextricably intertwined’ with the balance of the order from which an appeal has not been taken, an appellate court may not be circumscribed in its review, nor precluded from passing upon so much of the order as is necessarily affected by the portion from which an appeal has been taken.”
Unobjected to errors in the charge are not the only type of action or rulings of the trial court that will prompt the Appellate Division to exercise its “interests of justice” power.
Thus, in Max v. Brookhaven Dev. Corp., 262 AppDiv. 90, 25 NYS2d 845, 846 (2d Dept. 1941), the court found plaintiff’s verdict to have been based on impermissible evidence and it reversed and ordered a new trial, stating:
“While the admission was not objected to, where, as here, the recovery is based largely upon such incompetent evidence, a new trial will be ordered in the interests of justice.”
The Appellate Division will reverse “in the interests of justice” if it deems the error serious enough even though trial counsel specifically acquiesced in it. See Caputo v. Frankel, 89 AD2d 595, 452 NYS2d 549 (2d Dept. 1982).
However, be aware that the Appellate Division is not always so forgiving in its rulings. It will often “decline to reach this unpreserved error in the exercise of discretion.” Taylor v. Henderson, 175 AD2d 590, 573 NYS2d 793, 793–94 (4th Dept. 1991).
Taylor, was a personal injury action where a jury awarded plaintiff $97,500 for future loss of earnings and $25,000 for future impairment of earning ability. “Defendant argues for the first time on appeal that the awards are duplicative and should not stand, and that the charge failed to explain any difference between the two concepts.”
The Appellate Division “agree[d] with defendant that the interrogatory was erroneous, [but] ... decline[d] to reach this unpreserved error in the exercise of discretion.”
In Brown v. Dragoon, 11 AD3d 834, 835-836, 784 NYS2d 175, 178 (3d Dept. 2004), plaintiffs moved to set aside the verdict for failure of the verdict sheet to contain an interrogatory based on common-law negligence. The Supreme Court denied the motion.
On appeal, the Appellate Division “decline[d] to address this issue in the interest of justice since the omission has no impact on the overall fairness of the trial.” And in Galeano v. Giambrone, 218 AD3d 745, 193 NYS3d 224, 228 (2d Dept. 2023), the court found the jury charge was not so “fundamentally flawed as to warrant reversal in the interest of justice.”
While ideally trial counsel will make all the objections necessary to protect the record in case of an adverse verdict, it is comforting to know that, in an appropriate case, prejudicial error to which no objection was made may nevertheless be found to be a ground for reversal “in the interest of justice.”
So far, we have discussed the concept of “interest of justice” only in the context of civil cases. But it should be noted that it is also applied, albeit somewhat differently, in criminal cases.
The Appellate Division “may consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant.”(CPL§470.15[1]). And, unlike the Court of Appeals, it may reverse or modify a judgment, sentence or order “[a]s a matter of discretion in the interest of justice” even though the claims have not been preserved for appellate review. (CPL §470.15[3][c]).
In the majority opinion in People v. Williams, 145 AD3d 100, 108, 40 NYS3d 94, 100 (1st Dept. 2016), the court stated that “it is settled that the discretionary act to vacate a conviction in the interest of justice is to be ‘exercised sparingly and only in that rare and unusual case where it cries out for fundamental justice beyond the confines of conventional considerations’... In order to exercise our interest of justice jurisdiction, there must exist ‘special circumstances deserving of recognition’... In other words, this court will not exercise its interest of justice jurisdiction absent ‘extraordinary circumstances.’” (citations omitted).
The majority then ruled that “[t]his case and this defendant do not present special or extraordinary circumstances that would warrant exercising our interest of justice review power.
In People v. Kidd, 76 AD2d 665, 431 NYS2d 542 (1st Dept. 1980)..., we exercised our interest of justice jurisdiction to reverse a conviction and dismiss an indictment where there were many ‘troublesome’ inconsistencies with respect to the identification of the defendant… Although we concluded that the conviction was supported by legally sufficient evidence, we were ‘left with a very disturbing feeling that guilt ha[d] not been satisfactorily established’ and ‘that there [wa]s a grave risk that an innocent man ha[d] been convicted’... Accordingly, we could not let the conviction stand.
Recognizing that we should not use our interest of justice review in a ‘capricious and whimsical’ manner, we remarked ‘we think we do not overstep the line when we exercise our ‘interest of justice’ powers on the basis of so fundamental a consideration as guilt or innocence’... In sum, the exercise of interest of justice review must be warranted by the individual case in front of us and must involve ‘special circumstances’ such as the risk that an innocent defendant has been convicted. This is not such a case.”
An example of a criminal case where the Appellate Division exercised its “interest of justice” jurisdiction to take corrective action is People v. Demkovich, 168 AD3d 1221, 91 NYS3d 801, 802 (3d Dept. 2019), where the court vacated defendant’s plea of guilty to attempted kidnapping and criminal possession of a controlled substance.
“Defendant claimed his plea of guilty was not knowing, voluntary and intelligent because County Court failed to advise him of the constitutional rights he was waiving by pleading guilty. Although defendant failed to preserve this contention for our review through an appropriate postallocution motion… we nonetheless exercise our interest of justice jurisdiction to take corrective action and reverse the judgment.” (citations omitted).
Thomas R. Newman is of counsel at Duane Morris and Steven J. Ahmuty, Jr. is retired from Shaub, Ahmuty, Citrin & Spratt.
Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.
