Levo v. State of New York, 64 N.Y.2d 953 (1985)

An appellate court cannot substitute its discretion for that of the trial court when reviewing an order granting a new trial in the interest of justice, and such an order typically presents no question of law for further review by a higher court.

Summary

Plaintiff Rocco Levo, a member of a State Department of Transportation work crew, was injured when struck by a car driven by the defendant. The defendant then brought a third-party claim against the plaintiff’s supervisor, alleging inadequate safety measures. After a jury found the defendant fully responsible and absolved the third-party defendant, the trial court granted a new trial “in the interest of justice,” citing errors in limiting cross-examination of expert witnesses and refusing a requested jury charge. The Appellate Division reversed, substituting its discretion for that of the trial court. The Court of Appeals affirmed the Appellate Division’s order because the Appellate Division improperly substituted its discretion for that of the trial court.

Facts

Rocco Levo, the plaintiff, was part of a New York State Department of Transportation (DOT) crew repairing an exit ramp on the Northway. The defendant struck and injured Levo with their automobile. The defendant asserted a third-party claim against Levo’s co-workers, alleging inadequate safety measures were in place. This claim was later discontinued against all but the supervisor. At trial, the third-party defendant (the supervisor) presented expert testimony from two DOT employees to support his claim that adequate safety measures were in place.

Procedural History

The jury returned a verdict for the plaintiffs, finding the defendant wholly responsible for the accident and finding no cause of action against the third-party defendant (the supervisor). The trial court granted the defendant’s motion for a new trial pursuant to CPLR 4404(a), deeming it “in the interest of justice” due to errors in limiting cross-examination of the DOT expert witnesses and refusing a requested jury charge. The Appellate Division reversed the trial court’s order, denying the motion for a new trial, stating that the issues were already before the jury and further evidence would be cumulative. The Court of Appeals then reviewed the Appellate Division’s decision.

Issue(s)

Whether the Appellate Division erred in reversing the trial court’s order granting a new trial “in the interest of justice” by substituting its own discretion for that of the trial court.

Holding

Yes, because the Appellate Division improperly substituted its discretion for that of the trial court when the trial court granted a new trial “in the interest of justice”.

Court’s Reasoning

The Court of Appeals held that the Appellate Division improperly substituted its discretion for that of the trial court. The Court of Appeals stated, “Although the Appellate Division order recited that the reversal was ‘on the law,’ the decision makes plain that the appellate court substituted its discretion for that of the trial court.” The Court of Appeals emphasized that when an appellate court substitutes its discretion for that of the trial court, there is no question of law for the Court of Appeals to review. The trial court has broad discretion in deciding whether to grant a new trial in the interest of justice, and the Appellate Division’s disagreement with the trial court’s assessment of the impact of the evidentiary rulings was not a basis for reversal. The Court of Appeals affirmed the Appellate Division’s ultimate order, but clarified that it did so because the Appellate Division’s rationale was flawed – the Appellate Division should not have substituted its discretion for the trial court’s. The court cited Matter of Von Bulow, 63 NY2d 221, 225; Brady v Ottaway Newspapers, 63 NY2d 1031; Gutin v Mascali & Sons, 11 NY2d 97 in support of its holding.