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DEFENDANTS FAILED TO MOVE FOR A MISTRIAL BASED ON PLAINTIFF’S COUNSEL’S ALLEGED BEHAVIOR PRIOR TO THE VERDICT; THE ALLEGED BEHAVIOR WAS NOT SO WRONGFUL OR PERVASIVE AS TO JUSTIFY SETTING ASIDE THE VERDICT IN THE INTEREST OF JUSTICE (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined the motion to set aside the verdict based on the conduct of plaintiff’s counsel should have been denied because (1) no motion for a mistrial was made before the verdict, and (2) counsel’s behavior was not so wrongful and pervasive as to justify setting aside the verdict in the interest of justice. Allegedly, plaintiff’s daughter was raped by defendants’ son, in defendants’ house, during a sleep over. It was alleged defendants were aware of the danger posed by their son:

Although some of counsel’s comments may have been objectionable, because defendants did not move for a mistrial their “argument respecting these remarks [was] not preserved” … . Nor, in our opinion, have defendants shown this to be “the rare case in which the misconduct of counsel for the prevailing party was so wrongful and pervasive as to constitute a fundamental error and a gross injustice warranting the exercise of the trial court’s discretionary power under CPLR 4404 (a) to set aside a verdict in the interest of justice” … . Accordingly, Supreme Court erred in granting defendants’ posttrial motion to set aside the verdict in the interest of justice. Lisa I. v Manikas, 2024 NY Slip Op 05164, Third Dept 10-17-24

Practice Point: To address objectionable courtroom behavior of opposing counsel, a motion for a mistrial should be made before the verdict.

Practice Point: A post-verdict motion to set aside the verdict based upon opposing counsel’s courtroom behavior should not be granted absent “misconduct so wrongful and pervasive as to constitute a fundamental error and a gross injustice.”

 

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