Justice F. Dana Winslow
Plaintiffs moved to set aside the verdict and for a new trial as to liability and damages arguing the jury verdict was against the weight of the credible evidence, and in the interests of justice. They argued admissions made by defendants, and the departures determined by the jury for which no commensurate causation was found, showed the verdict was inconsistent with the evidence presented. However, the court concluded the jury did not reach its verdict against the weight of the evidence, thus it must consider "in the interest of justice." The court looked "to an evolution" since Nicastro v. Park, which required error for a trial court to order a new trial. The court believed the appellate courts must remove constraints on the trial courts and remove the necessity for a finding of error as a condition for invoking "in the interest of justice" under CPLR 4404(a). Hence, while the court found the interests of justice would be served by ordering a new trial, the court declined to do so in contravention of the Second Department’s prior declarations of the need for error to exist to find that a new trial be ordered in the interest of justice. Therefore, the court denied plaintiffs’ motion to set aside the verdict.
