Elliott Scheinberg. Courtesy photo
On Oct. 28, 2020, this column titled “Fourth Department, Preserving Weight of Evidence Contentions; Judicial Notice” addressed the Fourth Department’s momentous two decisions, Defisher v. PPZ Supermarkets, 186 A.D.3d 1062 [4th Dept. 2020] and Alexandra R. v. Krone, 186 A.D.3d 981 [4th Dept. 2020], which repudiated its prior authority and adopted the then recent shift in law by the Second Department, in Evans v. New York City Transit Authority,179 A.D.3d 105 [2d Dept. 2019], that “an appellant need not preserve the contention that a jury verdict was contrary to the weight of the evidence by making a post-verdict motion for a new trial.”
The evolution continues as the Third Department, in Fitzpatrick v. Tvetenstrand, 2024 NY Slip Op 01956 [3d Dept 2024], has now adopted Evans and Defisher. It also logically reads the First Department’s decision, Sims v. Comprehensive Community Development, 40 AD3d 256, 258 [1st Dept 2007], abrogated by Ornstein v. New York City Health and Hospitals, 10 NY3d 1 [2008], as also so holding.
