Trials Judgements and Appeals

Question 0

Demand for a Trial By Jury

Answer 0

Any party with a right to a jury trial may file a NOTE OF ISSUE containing a demand for a jury trial and must serve it on all parties to the action.

Needs to specify the issues he wants tried otherwise the demand is assumed to apply to all the issues.

Once properly demanded it cannot be withdrawn without consent of all the parties.

Question 1

Trials - Jury and Non Jury in general

Answer 1

There is a right to a jury for any claim not traditionally a matter of equity and in cases where the law expressly provides a right to trial by jury.

Jury - Trier of Fact
Judge - Decides matters of law

Question 2

Waiver of Jury Trial

Answer 2

Deemed waived if no party demands jury trial
Court may order a jury trial without proper demand if a party requests it and no other parties are substantially prejudiced.

Question 3

Waiver of right to trial after demand

Answer 3

1. filing a written waiver with court
2. making an oral waiver in open court
3. failing to appear at trial

No waiver of right to jury trial as to certain appropriate claims by joining them with claims not triable by jury

Question 4

If it becomes apparent the relief requested permits trial by jury.

Answer 4

Even if not properly requested the court Must give the adverse party an opportunity to demand a trial by jury.

Question 5

Jurors

Answer 5

Civil trial - 6 jurors

Unless court orders otherwise 1 or 2 alternates may be drawn at the request of a party.

Question 6

Juror Challenges

Answer 6

Judge may be present during the examination of jurors at a parties request.
Parties may stipulate to excuse a juror.
W/o stipulation objection to a juror must be made by challenge.
A challenge may be made to an individual juror or a panel. Court will determine the challenge.

Question 7

Juror Challenges for Cause

Answer 7

Challenges for Cause are unlimited

1. juror is employed by one of the parties
2. juror is a shareholder in a corporation that is a party
3. juror is connected in any way with any insurance company issuing liability policies related to the action
4. juror has a blood relation within 6 degrees of any party

Question 8

Preemptory Challenges

Answer 8

Generally each side has 3 plus one for every 2 alternates

used to strike jurors without cause

court may grant additional challenges

Question 9

Jury Instructions

Answer 9

parties may file written requests for specific law on which jury is to be instructed.

Court will inform counsel of its decision prior to closing arguments outside presence of jury

Parties must object to a jury instruction prior to the jury’s retirement and state matter and grounds of the objection

Question 10

Verdicts in Civil Trials in general

Answer 10

5 of 6 musty agree

Court may ask jury to find general or special verdict

Question 11

General Verdict

Answer 11

Allows the jury to simply find in favor of one or more parties.

May request written answers to written interrogatories on issues of fact. If the answers are consistent with each other but inconsistent with the verdict the court may:

1. direct an entry of judgement in accord with the answers regardless of the verdict
2. require the jury to reconsider
3. order a new trial.

Question 12

Special Verdict

Answer 12

Jury is asked to find the facts only.
Court will determine which party is entitled to judgement based on the jury’s finding of fact.
Court will submit questions to the jury
Failure to object to the questions before the jury retires constitutes a waiver of the right to object.

Question 13

When jury responses to interrogatories are inconsistent with each other and the verdict, the court may:

Answer 13

require the jury reconsider its answers and verdict

order a new trial

Question 14

Jury Instructions for Medical Malpractice, Personal Injury, Wrongful death, or damage to property

Answer 14

Court must instruct the jury that it must itemize the damages in the verdict

Question 15

When will there be a trial by court

Answer 15

1. No right to jury at common law
2. No law gives a right to trial by jury
3. Trial by jury not properly demanded

Prior to the beginning of the case the court may give the parties an opportunity to submit requests for findings of fact.

Question 16

Trial Preference
Generally civil cases are tried in the order in which the notice of issue is filed. Other cases are afforded preference in scheduling

Answer 16

1. Where the state is a party
2. Where a party is at least 70 years old
3. Where granted preference by statute (special proceeding)
4. Medical Malpractice or Personal Injury

Question 17

Interest on a Judgement

Answer 17

Interest is calculated from the earliest ascertainable date the CoA existed. Where damages incurred at various times interest is computed for each item from the date of occurrence.

Judgement itself accrues interest

Question 18

Periodic Payments

Answer 18

Medical Malpractice - over $500k
Personal Injury, wrongful death, damage to property over $250k

Court is required to set schedule for periodic payments via an annual annuity over no more than 8 years

Question 19

Collateral Recovery

Answer 19

Ps damages may be reduced for collateral funds received, excluding life insurance and payments received by Statutorily right, less the amount of the premiums paid for such benefits over the 2 year period preceding the accrual of the action.

Question 20

Actions where collateral recovery will reduce P’s award

Answer 20

personal injury

injury to property

wrongful death

Question 21

Assets available to enforce a money judgement

Answer 21

1. A debt owed to the losing party
2. Any property of the losing property that can be assigned or transferred whether it consists of a present or future right or interest

Question 22

Res Judicata

Answer 22

bars a litigant from relitigating a claim that has been decided on the merits. Including claims that could have been raised and litigated.

Question 23

Collateral estoppel

Answer 23

applies to issues in a case that was decided on the merits. Such issues may not be relitigated in a subsequent proceeding involving a different claim or cause of action.

Does not apply to issues that were not litigated in a prior proceeding even though they could have been.

Question 24

Collateral Estoppel and findings of facts

Answer 24

CE applies to findings of not strictly essential to the judgement in a prior proceeding IF the findings were the PRODUCT OF FULL LITIGATION and case decision.

May give conclusive effect to the quasi-judicial determinations of administrative agencies if the procedures were substantially similar to those used in a court of law.

Question 25

Factors a court will use to determine if facts determined in an administrative proceeding will be given preclusive effect.

Answer 25

1. Whether the agency has authority to act judicially
2. Whether the proceedings afford the parties a full an fair opportunity to litigate; and
3. Whether the expectation of the parties are that the issues were resolved at the administrative level in the quasi-judicial proceeding.

Question 26

Default Judgement

Answer 26

1. if D fails to appear or plead or otherwise neglects to proceed, P may seek a default judgement.
2. P can apply with the clerk within one year after the default judgement and enter that amount plus costs.
3. If P fails to seek default within one year, the clerk must dismiss the complaint as abandoned unless P shows sufficient cause why it should not.
4. If P fails to proceed to trial then one year after date of default of P, D may apply for a default judgement and the clerk will enter a default judgement for costs.

Question 27

Who may Appeal?

Answer 27

Only an aggrieved party may appeal a judgement or order.
A party who has been defaulted cannot claim to be aggrieved until he has made and lost a motion to vacate the default judgement.

Appeals must be brought within 30 days.

Question 28

How to Preserve the Right to Obtain a Review of certain errors

Answer 28

Party must make motions or object during trial to preserve the right to obtain review of errors.

Failure to do so makes the error unreviewable UNLESS the error was SUBSTANTIAL and SECIAL CIRCUMSTANCES exist

Question 29

Appeal - Multiple Defendant Scenereo

One D appeals and wins a reversal and the other D does not

Answer 29

The reversal or modification will not inure to the benefit of a non-appealing co-party UNLESS unless judgement was rendered against parties having a “united and inseverable interest in the subject matter of the judgement which permits no inconsistent application among the parties.”

Question 30

Appeal as of Right to the Appellate Division

Answer 30

Every judgement, final or interlocutory, is appealable as of right to the appellate division UNLESS the judgement is:

1. ministerial based on an appellate order.
2. an Article 78 proceeding; or
3. on a motion for a more definite statement or to strike a prejudicial or scandalous matter

Question 31

Appealability of orders

Answer 31

extremely broad with limited exceptions

One is an order granted ex parte. The aggrieved is required to first move on notice to vacate the ex parte order, which on notice woudl then be appealable.

Question 32

Where can Appeals originating in district court, city courts, and justice courts be appealed?

Answer 32

Through the appellate term or the county court to the appellate division. Such cases can only go to the court of appeals with leave of the appellate division.

Question 33

Appeals as of Right to the Court of Appeals

Answer 33

Limited to final determinations in actions originating in the Supreme Court, a county or surrogate court, the family court, court of claims, or an administrative agency where:

1. there is dissent by at least 2 justices filed in the appellate division on a question of law in favor of the would be appellant.
2. The decision in the lower court involved an interpretation of hte federal or state constitution.

Question 34

Appeal of Trial court judgements presenting only the validity of a statute under NY or US constitution are appealed where?

Answer 34

Appealed as of right directly to the court of appeals

Question 35

Where the Appellate division has decided an issue and remanded for trial? Where and when can the aggrieved party appeal

Answer 35

They may appeal as of right directly to the court of appeals.
However, he is limited to the previously decided issues and waives any others unless first proceeding to appeal again to the appellate division

Question 36

Stay of Proceedings Pending Appeal

Answer 36

Automatic stay of enforcement of a judgement pending appeal is available to government bodies.

All other appellants may obtain an automatic stay only upon filing a bond with the court or taking some other step to secure the other party for the judgement AND
appellate court finds a “reasonable probability the judgement may be reversed or deemed excessive.”

A Discretionary Stay may be applied for in the trial court, appellate division, or any other intermediate appellate court where the courts order is on appeal

Question 37

Scope of appellate review

Answer 37

Court stands in the shoes of the trial judge. (other than court of appeals)
Possess the power to review both law and facts.
Where the record is adequate, the reversing appellate court may render whatever judgement the trial court should have entered and may so so without remand if no further evidence is necessary.

Question 38

Appellate Review - Difference between Judge as trier of fact vs Jury

Answer 38

Where the judge was the original trier of fact, the appellate court may enter a judgement.

Where the trier of fact was a jury and the appellate division makes a different findings of fact, the case MUST be remanded for a new trial in the Supreme Court UNLESS the question becomes one of law.

Question 39

Review by the Court of Appeals

Answer 39

Limited to questions of law, EXCEPT those instance where the appellate division has found new facts and entered judgement upon them.
In such case the review of the facts is limited to the new facts found by the appellate division.

Question 40

Procedures for Appeal

Answer 40

Notice of Appeal (where appeal as of right)
Motion for leave to appeal (where permissive)
Must be served upon appellee and filed with the clerk of of the court where judgement was entered within 30 days of service upon appellant of a copy of the order or judgement to be appealed, and written notice of entry of the order or judgement.