Thomas R. Newman

As Justice Felix Frankfurter aptly observed, "Wisdom too often never comes, and so one ought not to reject it merely because it comes late." See Henslee v. Planters National Bank & Trust Co. , 335 U.S. 595, 600 (1949). With certain limited exceptions, however, issues raised for the first time on appeal will not be considered as grounds for a reversal or modification. There is an element of unfairness about seeking to reverse a judgment on a point not called to the attention of the trial court or intermediate appellate court, and on which the court was not given an opportunity to rule or correct its asserted error. Furthermore, the preservation requirement affords the opposing party an opportunity to make a necessary factual showing or take available legal countersteps.

Because the Appellate Division has the power to review both "questions of law and questions of fact" (CPLR 5501[c]), as well as questions involving the exercise of judicial discretion, that court has inherent power to consider a point raised for the first time on appeal in "the interest of justice." In contrast, the Court of Appeals has no equivalent interest of justice jurisdiction; the scope of its review is limited to "questions of law only" (CPLR 5501[b]).

The Appellate Division rarely exercises its discretionary interest of justice jurisdiction; it all depends on the facts of the case and how sympathetic the court feels toward the appellant's position. Generally, the Appellate Division focuses on whether the belatedly-challenged ruling constituted a "fundamental error" that prevented proper consideration of a core issue, and thus, materially affected the outcome of the proceedings. See, e.g., Pivar v. Graduate School of Figurative Art , 290 A.D.2d 212, 213 (1st Dept. 2002). Absent fundamental error, the court will not exercise its interest of justice jurisdiction, and the ruling in question—even if harmful error—becomes the law of the case.

The requirement of preservation has particular application in the context of motions for a mistrial. "Counsel may not be permitted to speculate upon whether a verdict will be favorable, before asserting a claim for a mistrial. Such a motion must be made in advance of the verdict." Schein v. Chest Serv. Co. , 38 A.D.2d 929 (1st Dept. 1972).

Attorney Misconduct

Smith v. Rudolph, No. 2950, 2017 WL 1377809, decided on April 18, 2017, involved a rare exercise of interest of justice jurisdiction to address attorney misconduct during a trial. The plaintiff's counsel apparently had objected to some instances of misconduct, but failed to timely move for a mistrial before the jury returned its verdict. After the verdict, the trial court nevertheless granted the plaintiff's motion for a new trial in the interest of justice on the ground of defense counsel's misconduct. The Appellate Division, First Department, affirmed the new trial order, holding that "the trial court properly considered plaintiff's posttrial motion and granted a new trial in the interest of justice, as defense counsel's misconduct constituted fundamental error that deprived plaintiff of substantial justice and likely affected the verdict" (id. at *3).

Smith arose from a garden variety pedestrian knock-down accident. The plaintiff claimed she was struck by a
New York City Transit Authority bus while crossing the street in a crosswalk with the light in her favor. The bus driver claimed the plaintiff had entered the intersection when the pedestrian sign read "don't walk" and bumped into the bus. As a result of this accident, the plaintiff suffered knee and back injuries. At trial, the plaintiff's treating physician testified that her injuries were significant and permanent, and that plaintiff would require further treatment. The defense presented medical experts who opined that plaintiff's knee and back injuries resulting from the accident had fully resolved.

The jury apportioned fault 70 percent to defendants and 30 percent to the plaintiff. Finding that the plaintiff had not sustained a "permanent consequential limitation" injury, the jury awarded past damages but no future damages. Feeling aggrieved by this verdict, the plaintiff moved for judgment as a matter of law on the issue of comparative fault and for an additur on damages. Alternatively, she sought a new trial on the ground of, among other things, defense counsel's misconduct throughout the trial. As noted, the plaintiff's counsel apparently had objected to some instances of misconduct, but failed to timely move for a mistrial before the jury returned its verdict.

The trial court granted the plaintiff's motion for a new trial in the interest of justice, despite the absence of a motion for a mistrial, concluding that defense counsel's misconduct was "so extreme and pervasive as to make it inconceivable that it did not substantially affect the fairness of the trial." 2017 WL 1377809 at *2. The court recited multiple instances of such misconduct, including frequent expressions of personal opinion regarding plaintiff's motives for suing, speaking objections, baseless motions (by defense counsel) for a mistrial in front of the jury, denigration and inappropriate cross-examination of plaintiff's treating physicians, inflammatory and improper summation comments, and frequent instances of hostility toward witnesses and the court. The defendants appealed from the resultant new trial order.

Provident Exercise of Discretion

In an opinion by Justice Dianne T. Renwick, the Appellate Division, First Department, affirmed the new trial order. Preliminarily, the court reviewed the general principles relating to a court's discretionary exercise of its interest of justice jurisdiction, 2017 WL 1377809 at *3 (citations omitted):

We are mindful that a counsel's objection to improper conduct, but failure to timely move for a mistrial before a jury returns a verdict, renders the error unpreserved and "may limit appellate review." However, pursuant to CPLR 4404(a), the court, upon the motion of any party or on its own initiative, may set aside a verdict "in the interest of justice." This "is predicated on the assumption that the Judge who presides at trial is in the best position to evaluate errors therein." In this regard, the trial court must decide, based on "common sense, experience and sense of fairness," whether "it is likely that the verdict has been affected" by the alleged misconduct. The trial court's determination is "discretionary in nature" and should not therefore be reversed absent an abuse or improper exercise of discretion.

The court concluded that the trial court had providently exercised its discretion in granting a new trial in the interest of justice based upon defense counsel's "pervasive pattern of misconduct that permeated the month-long trial," which "created a climate of hostility that so obscured the issues as to have made the trial unfair." 2017 WL 1377809 at *3. In reaching this conclusion, the court noted that the misconduct in question could not be deemed "harmless," as it likely affected the jury's determination of the core issues on comparative fault and future damages. The court further noted that while "an apportionment of liability may support a finding of careful deliberation by the jury," the 70 percent-30 percent apportionment in Smith was more likely "a compromised verdict due to defense counsel's pervasive misconduct." Id. at *5.

Justice David Friedman wrote a concurring opinion in Smith "to note that [the court's] disposition of this appeal should not be construed as a retreat from the general principle that a party who fails to move for a mistrial before the case is submitted to the factfinder, in spite of being aware of grounds for doing so, will not be granted relief on a motion to set aside a disappointing verdict on those grounds" and to reiterate that "[i]t is only in the rare case where the misconduct of opposing counsel was so wrongful and persistent as to constitute a fundamental error and a gross injustice that a trial court may providently exercise its discretion under CPLR 4401(a) to set aside the verdict on the grounds of such misconduct, in spite of the aggrieved party's failure to make a timely mistrial motion." 2017 WL 1377809 at *5.

Exercises of interest of justice jurisdiction such as that in Smith continue to be rare exceptions to the general rule of waiver. For example, in Lagos v. Fucale, 139 A.D.3d 908 (2d Dept. 2016), lv. dsmd., 28 N.Y.3d 1178 (2017) (citations omitted), "[t]he plaintiff's contention that the defendants' trial counsel made various improper comments during the course of the damages trial [was] unpreserved for appellate review because the plaintiff either failed to object to these comments at trial, or did not seek further curative instructions and did not immediately move for a mistrial." Similarly, the court in Bertram v. Columbia Presbyterian, 126 A.D.3d 473, 473-74 (1st Dept. 2015), lv. den., 26 N.Y.3d 905 (2015), declined to review the plaintiffs' arguments regarding opposing counsel's conduct in the interest of justice, where no motion for a mistrial had been made before the verdict, "since plaintiffs failed to show that defense counsel's conduct constituted a substantial injustice or that it likely affected the verdict." And even where "the behavior of defendants' counsel was reprehensible," the court in Karam v. Adirondack Neurosurgical Specialists, P.C. , 93 A.D.3d 1260, 1262 (4th Dept. 2012), declined to address this issue in the interest of justice because it had not been properly preserved.

The rule requiring a timely pre-verdict motion for a mistrial is rooted in notions of judicial economy and the inherent unfairness of permitting a party to stockpile appellate points. Failure to comply with this preservation requirement will generally result in a waiver of an appellate issue, no matter how ostensibly meritorious. 

Thomas R. Newman is of counsel to Duane Morris and author of 'New York Appellate Practice' (Matthew Bender). Steven J. Ahmuty, Jr. is a partner at Shaub, Ahmuty, Citrin & Spratt.

Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.