The recent case Powell v. City of New York, 146 A.D.3d 701 (1st Dept. 2017), is a brow furrowing lesson to the unwary would-be appellant that within the fundamental appellate principles of preservation of issues and aggrievement, perceived as absolute and immutable, lurks a potential trap. At Powell‘s epicenter lies the perfect intersection of storms of CPLR 5701(a)(1) (appealability as of right), CPLR 4404(a), and CPLR 4406 (not cited in the decision), the latter two combining to bar an albeit properly preserved issue at trial from appellate review where a party has brought a post trial motion for a new trial or a directed verdict based on different grounds but did not raise the other unrelated preserved issue in the motion.
‘Powell’
The appeal in Powell arose from a personal injury based upon premises liability. The trial court issued an order granting plaintiff’s post trial motion, pursuant to CPLR 4404(a), to set aside the jury’s verdict that the defendant (the City) was negligent, but that its negligence was not the proximate cause of the plaintiff’s injuries. However, a prior appeal then reversed the trial court’s order and reinstated the defense verdict with a direction to the Clerk of the Supreme Court to enter judgment dismissing the complaint. Plaintiff now appealed from the judgment that dismissed her complaint.
