How specific does an attorney need to be in stating the grounds of a directed verdict motion at trial? In Nunez v. MVAIC, a recent Appellate Division, Second Department decision, the court reminds us that CPLR 4401 – the rule regarding a directed motion – requires that the grounds of the motion “shall be specified.” The defendant’s counsel’s recitation of the ground upon which the directed motion was based satisfied the rule.
In Nunez, the plaintiff was struck by an unidentified motor vehicle as she crossed an intersection. She claimed to have suffered a serious injury under Insurance Law § 5102(d). At the close of the plaintiff’s case, the defendant made a motion “to move for threshold” — i.e., the plaintiff’s proof did not demonstrate that her injuries came within the ambit of one of the serious injury categories. The defendant made its case, and Supreme Court reserved decision. After the defendant rested, its counsel asked the court to address the outstanding directed verdict motion, stating “I would like to renew my motion to dismiss based on threshold”. Supreme Court denied the motion.
In reversing and dismissing the complaint on appeal, the Second Department ruled that the defendant’s motion for judgment as a matter of law “based on threshold” satisfied the specificity requirement of CPLR 4401 because it called the trial court’s attention to the defendant’s contention that the plaintiff failed to support her claim that she sustained a serious injury. The Second Department held that the motion was not a “general objection,” which would not have preserved the issue for appellate review.
This case serves as a reminder that trial attorneys should not move for directed verdicts in a rote manner, failing to set forth the specific grounds for making the motion. In light of all the aspects and distractions that come with a trial, having an appellate specialist as part of the trial team can help the lead trial attorney avoid and navigate issues like the one raised in Nunez.
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