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ORDER DISMISSING COMPLAINT, ENTERED BY THE CLERK AT THE DIRECTION OF THE APPELLATE COURT AFTER REVERSAL, DOES NOT BRING UP TRIAL INTERLOCUTORY RULINGS FOR APPEAL.

The First Department rejected the plaintiff’s attempt to appeal evidentiary rulings made by the trial court. Plaintiff had successfully moved to set aside the defense verdict in this personal injury case. The First Department reversed and directed the clerk to enter a judgment dismissing the complaint. The plaintiff then appealed that order, raising trial evidentiary issues. The First Department held that the order appealed from was not the order of the trial court, therefore the interlocutory evidentiary rulings could not be raised:

Although an appeal from a final order or judgment of Supreme Court brings up for review, inter alia, certain evidentiary rulings made at trial (CPLR 5501[a][3] …), once this Court decides the issues raised on appeal and directs the Clerk of the court from which the appeal originated to enter judgment, such judgment finally disposes of all the issues in the action (CPLR 5701[a][1]…). The judgment that the Clerk entered … was entered in accordance with and pursuant to an order of this Court (the Appellate Division) which “dispose[d] of all the issues in the action” (CPLR 5701[a][1]). Stated differently, the … judgment is not a judgment of the trial court bringing up interlocutory issues for review … . …

Plaintiff did not move to set aside the verdict based upon erroneous evidentiary rulings. Although as plaintiff correctly argues, there is no interlocutory appeal as of right from an evidentiary ruling during trial (see CPLR 5701[a]…), plaintiff had the opportunity to raise legal arguments regarding the evidentiary rulings made by the trial court in support of her motion to set aside the jury’s verdict.

These issues could have also been raised to support her position in the prior appeal. Powell v City of New York, 2017 NY Slip Op 00576, 1st Dept 1-31-17

 

APPEALS (ORDER DISMISSING COMPLAINT, ENTERED BY THE CLERK AT THE DIRECTION OF THE APPELLATE COURT AFTER REVERSAL, DOES NOT BRING UP TRIAL INTERLOCUTORY RULINGS FOR APPEAL)/INTERLOCUTORY EVIDENTIARY RULINGS (APPEALS, ORDER DISMISSING COMPLAINT, ENTERED BY THE CLERK AT THE DIRECTION OF THE APPELLATE COURT AFTER REVERSAL, DOES NOT BRING UP TRIAL INTERLOCUTORY RULINGS FOR APPEAL)/REVERSAL (APPEALS, (ORDER DISMISSING COMPLAINT, ENTERED BY THE CLERK AT THE DIRECTION OF THE APPELLATE COURT AFTER REVERSAL, DOES NOT BRING UP TRIAL INTERLOCUTORY RULINGS FOR APPEAL)

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