Issue Preservation At The Trial Court Level

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.” See Wilson v. Galicia Contracting & Restoration Corp., 10 N.Y.3d 827, 829 (2008).

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 adverse party an opportunity to make a necessary factual showing or take available legal counter-steps.

Appellate courts may consider a newly raised issue involving a “pure question of law appearing on the face of the record which could not have been avoided if raised at the proper juncture.” See Maurizaca v. CW Highridge Plaza, LLC, 222 A.D.3d 964, 965 (2d Dept., 2023).

The Court of Appeals, however, recently underscored that this exception is “rarely used.” See Sabine v. State, ___ N.Y.3d ___, 2024 WL 5126079, at *2 (Dec. 17, 2024)

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. E.g., Drapper v. Horan, ___ A.D.3d ___, 2025 WL 626405, at *1 (1st Dept., Feb. 27, 2025) (“We also decline to review the matter in the interest of justice, as the statements in summation were not ‘so prejudicial as to have caused a gross injustice and so pervasive, prejudicial, or inflammatory as to deprive a party of a fair trial.’”).

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]); see also Sabine, supra, at *1. (“Unlike the Appellate Division, we lack jurisdiction to review unpreserved issues in the interest of justice.”).

“To demonstrate that a question of law is preserved for [Court of Appeals] review, a party must show that it raised the specific argument in [the trial court] and asked the court to conduct that analysis in the first instance.” See Sabine, supra, at *1 (citation omitted).

The requirement of preservation is so important to the Court of Appeals that it is obligated “to determine whether an issue has been properly preserved below, regardless of whether the parties have raised preservation arguments.” See Sabine, supra, at *1 (citation omitted).

To this end, 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” (see 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.”

Preservation At The 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 (other action pending), 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.

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.”

In particular, “’[a] judgment or order issued without subject matter jurisdiction is void, and that defect may be raised at any time and may not be waived’ because it goes to the ‘competence’ of the court.” See Henry v. New Jersey Transit Corp., 39 N.Y.3d 361, 367 (2023) (citations omitted).

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 the preservation requirement must be considered from the very outset of any litigation.

Although some cases are not amenable to a CPLR 3212 motion for summary judgment, such as those hinging on factual or credibility issues, and no rule requires a summary judgment motion in every case, this can still be a useful tool in an appropriate case for preserving issues for appellate review at the pre-trial stage.

Likewise, pre-trial motions in limine to address evidentiary issues are an effective way to memorialize offers of proof and set 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, is an advisory opinion that is neither appealable as of right nor by permission. See Desantis v. Desantis, 225 A.D.3d 839, 840 (2d Dept., 2024). As discussed below, evidentiary issues may be preserved by timely offers of proof or objections at trial.

Preservation At The Trial Stage

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.” See Horton v. Smith, 51 N.Y.2d 798, 798 (1980).

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 specifically 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.”

Paragraphs (3) and (4) of section 5501(a) correspondingly provide 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.”

Thus, unobjected-to rulings are not preserved for appellate review.

Under CPLR 4110-b, which governs objections to jury instructions, “[n]o 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 pre-charge conference, which should always be on the record for preservation purposes. Typically, the parties submit written requests to charge before the conference.

These should be marked as court exhibits. 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 should then state 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. 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).

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. Again, this should be done on the record.

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 which 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 move pursuant to CPLR 4401 for judgment as a matter of law at the close of the evidence is generally deemed an implicit concession that the evidence presented a question of fact for the jury. See Miller v. Miller, 68 N.Y.2d 871, 872 (1986).

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 judgment 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 At The Post-Trial Stage

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 was the product of erroneous trial rulings; 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 size of the damage award is contested since both issues involve an element of discretion that the trial court necessarily cannot exercise until after a verdict has been rendered.

An inconsistent verdict must be brought to the trial court’s attention before the discharge of the jury to preserve this issue for appellate review.

A verdict is inconsistent if “a verdict on one claim necessarily negates an element of another cause of action” when viewed in light of the jury instructions. See Barry v. Manglass, 55 N.Y.2d 803, 805 (1981). CPLR 4111(c) dictates how courts should treat internally-inconsistent verdicts: “[T]he court shall require the jury to further consider its answers and verdict or it shall order a new trial.”

Thus, when a jury returns an inconsistent verdict, an immediate oral motion should be made, before the jury has been discharged, to afford the court an opportunity to 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. See Barry, supra, 55 N.Y.2d at 806.

If corrective action is not taken before the discharge of the jury, and the Appellate Division subsequently concludes that the verdict is in fact fatally inconsistent, then a new trial must be ordered.

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.

Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.