February 10, 2025
Unlike most litigators, appellate attorneys spend most days in their offices writing motions and briefs. However, that is not to say their workdays are calm. Many days are faced with emergencies. Many times, the appellate attorney is called into a case at a moment of crisis. These situations typically arise during the midst of trial, and many times while parties are arguing about a directed verdict. Sometimes, the parties put so much focus on the substance of their arguments that they forget the procedural issues that can arise. This failure to adhere to the procedure can result in new trials which cause delay and expense for all involved.
CPLR 4401 dictates the two times when a party can move for a directed verdict. First, and most common, is after a party’s adversary rests. Second, and less common is at any time if a party makes an admission that is fatal to their case (see Ballantyne v City of New York, 19 AD3d 440 [2d Dept 2005]; Riccio v De Marco, 188 AD2d 847 [2d Dept 1992]). Moving for a directed verdict at any other time should result in the denial of the motion. If the motion is granted, it is likely that there will be a new trial after an appeal.
The plaintiff in Fishon v Richmond Univ. Med. Ctr. (171 AD3d 873 [2d Dept 2019]) successfully moved for a directed verdict during jury selection. The Appellate Division stayed the trial and after waiting for two years for the appeal to conclude, the Second Department held that the trial court should not have even considered the plaintiff’s motion and reversed.
In Veley v Manchester (191 AD3 1384 [4th Dept 2021]), the plaintiff rested their case and immediately moved for a directed verdict. The Appellate Division held that the plaintiff was improperly granted a directed verdict. The court noted that “…the time of a motion prescribed by CPLR 4401 must be strictly enforced and the grant of a dismissal pursuant to CPLR 4401 prior to the close of the opposing party’s case will be reversed even if the ultimate success of the opposing party in the action is improbable” (Veley, 191 AD3d at 1385-1386 quoting Griffin v Clinton Green S., LLC, 98 AD3d 41, 46 [1st Dept 2012]).
The timing of a directed verdict motion is one of those occasions where form will be put over substance. This procedural reality means that thought must be given to the timing of the motion, and what arguments are raised before the motion is made. Raising an argument that an adversary has failed to prove a part of their claim or defense without the ability to move for a directed verdict may give an adversary another opportunity to make their case.
Working with skilled appellate counsel can help trial lawyers navigate the strategic decisions that arise during every trial. The Law Offices of Seth M. Weinberg, PLLC, brings a wealth of expertise and a proven track record of success in appellate litigation. Their team is dedicated to providing meticulous and strategic representation, ensuring that every procedural and substantive aspect of your appeal is handled with the utmost care. Trust in their ability to advocate effectively on your behalf and secure the best possible results.