Elliott Scheinberg. Courtesy photo Weight of Evidence, Preservation, Third Department Joins Second, Fourth (and First)
The Third Department, in 'Fitzpatrick v. Tvetenstrand', has now adopted 'Evans' and 'Defisher'. It also logically reads the First Department's decision, 'Sims v. Comprehensive Community Development', abrogated by 'Ornstein v. New York City Health and Hospitals', as also so holding.
May 01, 2024 at 10:00 AM
7 minute read
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."
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