Commercial Division Blog

Posted: April 5, 2020 / Categories Commercial, Trial

Court Erred by Weighing Conflicting Evidence in Deciding Motion for Directed Verdict

On March 25, 2020, the Second Department issued a decision in Boriello v. Loconte, 2020 NY Slip Op. 02035, holding that a trial court erred by weighing conflicting evidence in deciding a motion for directed verdict, explaining:

After the defendants presented the testimony of their appraiser out of order and the plaintiff had rested, the defendants moved pursuant to CPLR 4401 for a directed verdict. The Supreme Court granted the defendants' motion for a directed verdict, determining that no trier of fact could find that the defendants breached their fiduciary duties as members and managers of Caterina. By order and judgment (one paper) dated March 7, 2017, the court granted the defendants' motion for a directed verdict and entered judgment in favor of the defendants dismissing the amended complaint with prejudice. . . . .

A motion for judgment as a matter of law pursuant to CPLR 4401 may be granted where the trial court determines that, upon the evidence presented, there is no rational process by which the trier of fact could base a finding in favor of the nonmoving party. In considering such a motion, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in light most favorable to the nonmovant.

Here, the Supreme Court, in announcing its decision, stated that it expressly considered and relied on the defendants' evidence. This was error, as it was improper for the court to consider, on a motion for a directed verdict made before the moving party had rested and the opposing party had an opportunity to present rebuttal evidence, the evidence introduced by the moving party.

Thus, in the context of a motion for a directed verdict, the Supreme Court should not have accorded the defendants' expert's testimony more weight than that of the plaintiff's expert. In determining a motion for a directed verdict, the trial court must not engage in a weighing of the evidence, nor may it direct a verdict where the facts are in dispute, or where different inferences may be drawn or the credibility of witnesses is in question. Accordingly, the judgment must be reversed, the defendants' motion for a directed verdict denied, the amended complaint reinstated, and the matter remitted to the Supreme Court, Kings County, for a new trial.

(Internal quotations and citations omitted).

This decision discusses a procedure that is relatively rare in complex commercial litigation--the court directing a verdict for a party instead of letting a jury decide. Contact Schlam Stone & Dolan partner John Lundin at if you or a client have questions about trial procedure in commercial lawsuits.