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Bylined Articles

The Three Stages of Issue Preservation

By Thomas R. Newman and Steven J. Ahmuty Jr.
September 2, 2015
New York Law Journal

The Three Stages of Issue Preservation

By Thomas R. Newman and Steven J. Ahmuty Jr.
September 2, 2015
New York Law Journal

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Thomas Newman
Thomas R. Newman

With limited exceptions, issues raised for the first time on appeal will not be considered as grounds for a reversal or modification. As the Court of Appeals has made clear, "the requirement of preservation is not simply a meaningless technical barrier to review."[1] 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 counter-steps.

Appellate courts, however, may consider a newly raised issue involving a "pure question of law" that is decisive of the appeal and could not have been obviated if raised in the trial court.[2] For example, questions of pure statutory interpretation may be raised for the first time on appeal since they could not have been obviated or cured by factual showings or legal counter-steps.[3]

Another exception involves the Appellate Division's "interest of justice" jurisdiction. 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.

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.[4] Absent fundamental error, the Appellate Division will not exercise its interest of justice jurisdiction, and the ruling in question—even if erroneous—becomes the law of the case.

The Court of Appeals has no equivalent interest of justice jurisdiction; the scope of its review is limited to "questions of law only" (see CPLR 5501[b]). Indeed, the requirement of preservation is so important to the court that the proposed appellant's papers in support of a motion for permission to appeal must include a statement "identify[ing] the particular portions of the record where the questions sought to be reviewed are raised and preserved" (22 N.Y.C.R.R. §500.22[b][4]), and an appellant's brief in a normal course appeal "shall include a statement showing that the Court has jurisdiction to entertain the appeal and to review the questions raised, with citations to the pages of the record or appendix where such questions have been preserved for the Court's review" (22 N.Y.C.R.R. §500.13[a]).

Preservation can be divided into three stages: pre-trial, during trial and post-verdict. This month, we review some of the requirements for preservation within each stage.

Pre-Trial Stage

Before trial, issues are typically preserved by motion, such as a pre-answer motion to dismiss, a motion for summary judgment or a motion in limine.

CPLR 3211(a) lists a number of grounds for dismissing one or more causes of action in a complaint before service of a responsive pleading. CPLR 3211(e) governs the issue of waiver for three categories of subdivision (a) defenses. First, a defense based upon paragraph one (documentary evidence), three (lack of capacity to sue), four (prior pending action), five (affirmative defenses) or six (non-interposable counterclaim) of subdivision (a) will be waived unless raised either by a pre-answer motion to dismiss or in a responsive pleading, although a defendant may seek to amend the answer to add a defense pursuant to CPLR 3025(b).

Second, a defense based upon paragraph two (lack of subject matter jurisdiction), seven (failure to state a cause of action) or ten (failure to join an indispensable party) "may be made at any subsequent time or in a later pleading, if one is permitted." Indeed, the defense of lack of subject matter jurisdiction "may be raised at any time and may not be waived."[5] Third, a jurisdictional defense in paragraph eight (personal) or nine (rem) is waived if a party moves on any ground set forth in subdivision (a) without raising such objection or if, having made no such motion, such objection is not raised in the responsive pleading. The intricate waiver rules in CPLR 3211(e) underscore that preservation must be taken into account from the very outset of any litigation.

Although some cases are not amenable to a motion for summary judgment under CPLR 3212, such as those hinging on factual or credibility issues, and no rule requires a motion for summary judgment in every case, this can still be a useful tool in an appropriate case for raising issues for appellate review at the pre-trial stage. Likewise, motions in limine to address evidentiary issues before trial are an effective way of memorializing offers of proof and setting up a post-judgment appeal. A pre-trial order that "merely limits the admissibility of evidence, even when made in advance of trial on motion papers, constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission."[6] Such pre-trial rulings are only reviewable after trial on an appeal from the final judgment, provided the ruling in question "necessarily affects the final judgment" (see CPLR 5501[a][1]).

Preservation During Trial

The need to preserve issues for appeal is reflected in CPLR 4017, which provides in part that "[a]t the time a ruling or order of the court is requested or made a party shall make known the action which he requests the court to take or, if he has not already indicated it, his objection to the action of the court." Where a party fails to make timely objection to a line of inquiry during the examination of a witness at trial, as required by CPLR 4017, "the testimony offered is presumed to have been unobjectionable and any alleged error considered waived."[7] The same is true with documentary and demonstrative evidence.

An appellate court cannot address questions relating to evidence outside the record. The court will not be in a position to review the trial court's decision to exclude evidence unless the excluded evidence has been marked for identification or, in the case of excluded testimonial evidence, an adequate offer of proof has been made on the record outside the presence of the jury. An adequate offer of proof describes the content of the excluded evidence and why it should be admissible.

CPLR 4017 further provides that "[f]ailure to so make known objections, as prescribed in this section or in section 4110-b, may restrict review upon appeal in accordance with paragraphs three and four of subdivision (a) of section 5501."

Under CPLR 4110-b, which governs objections to jury instructions, "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. Opportunity shall be given to make the objection out of the hearing of the jury." Section 4110-b contemplates a two-step procedure. The first step is the charge conference, which should always be on the record. It is customary for the parties to submit written requests to charge, which should be marked as court exhibits. This is followed by the conference at which the court, pursuant to section 4110-b, "out of the hearing of the jury, shall inform counsel of its proposed action upon the requests prior to their arguments to the jury." Counsel then voice their objections, if any, to the proposed charge. This is also an appropriate time for counsel to voice any objections to the form of the jury verdict sheet.[8]

The second step is the actual giving of the charge to the jury followed by objections to the charge as given. While section 4110-b does not specifically contemplate another round of objections after the jury charge, provided they are the same as those at the charge conference, a prudent lawyer will briefly reiterate the prior objections and add any new ones arising from the charge as given.

CPLR 5501(a) reinforces the necessity of preservation. Subdivisions (3) and (4) provide, respectively, that an appeal from a final judgment brings up for review "any ruling to which the appellant objected or had no opportunity to object or which was a refusal or failure to act as requested by the appellant, and any charge to the jury, or failure or refusal to charge as requested by the appellant, to which he objected" and "any remark made by the judge to which the appellant objected."

It is a familiar rule of appellate practice that the legal sufficiency of the evidence to establish a claim or defense is a question of law that must be preserved for appellate review by a motion for judgment as a matter of law under CPLR 4401 (a motion for a "directed verdict" in common parlance) before submission of the case to the jury. A party's failure to make a pre-verdict motion for judgment as a matter of law is generally deemed an implicit concession that the evidence presented a question of fact for the jury.[9] Thus, raising the issue of insufficiency of the opponent's proof for the first time after trial, by way of a post-verdict motion for judgment under CPLR 4404, will not operate to preserve this issue for appellate review. But if the trial court reserves decision on a CPLR 4401 motion for judgment made during the trial, then it will be necessary to renew the request for judgment by way of a post-verdict CPLR 4404(a) motion.

Preservation After the Verdict

CPLR 4404(a) and 4406 permit a single post-trial motion to set aside the verdict, in addition to any motion made orally immediately after the verdict. Typically, such motions seek some combination of the following relief: judgment as a matter of law on the ground the evidence was legally insufficient to support the verdict; a new trial on the ground the verdict was against the weight of the evidence; or a remittitur or additur on the ground the damage award "deviate[d] materially from what would be reasonable compensation" (see CPLR 5501[c]).

Although a CPLR 4404(a) motion to set aside the verdict is not a prerequisite to the taking of an appeal, such motions are usually filed where weight of the evidence or the amount of damages is contested since both issues involve an element of discretion that the trial court necessarily cannot exercise until after a verdict has been rendered. In the case of an inconsistent verdict, however, a timely post-verdict motion should be made to preserve this issue for appeal. Where the jury returns an inconsistent verdict, an immediate oral motion should be made, before the jury has been discharged, to have the court resubmit the case to the jury with further instructions in an effort to resolve the inconsistency. Failure to raise the inconsistency before the discharge of the jury will result in a waiver of this issue on appeal,[10] unless the inconsistency itself makes it impossible to know what the jury intended, in which case a new trial may be ordered in the interest of justice.[11]

The record on appeal is the sole basis for consideration of the issues raised on appeal. That being so, the importance of having a fully protected record, in which claims of prejudicial error have been properly preserved for appellate review, needs no elaboration.


  1. Wilson v. Galicia Contracting & Restoration Corp.,10 N.Y.3d 827, 829 (2008).
  2. Telaro v. Telaro, 25 N.Y.2d 433, 437 (1969).
  3. E.g., Matter of Richardson v. Fiedler Roofing,67 N.Y.2d 246, 250 (1986) ("The argument raises solely a question of statutory interpretation, however, which we may address even though it was not presented below.").
  4. See, e.g., Pivar v. Graduate School of Figurative Art, 290 A.D.2d 212, 213 (1st Dept. 2002) ("While plaintiff raised no objection to the court's erroneous charge, 'where the 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.'") (citations omitted).
  5. See Editorial Photocolor Archives v. Granger Collection, 61 N.Y.2d 517, 523 (1984).
  6. See Muhammad v. Fitzpatrick, 91 A.D.3d 1353 (3d Dept. 2012).
  7. See Horton v. Smith, 51 N.Y.2d 798, 798 (1980).
  8. E.g., Aguilar v. New York City Transit Auth., 81 A.D.3d 509, 510 (1st Dept. 2011) (failure to object to verdict sheet resulted in waiver).
  9. See, e.g., Hurley v. Cavitolo, 239 A.D.2d 559, 559 (2d Dept. 1997).
  10. See Barry v. Manglass, 55 N.Y.2d 803, 806 (1981).
  11. See Applebee v. Cnty. of Cayuga, 103 A.D.3d 1267, 1269 (4th Dept., 2013), reargument denied, 107 A.D.3d 1503 (4th Dept. 2013).

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