Van Dusen v. McMaster

Hurlbutt and Scudder, JJ. (dissenting).

We respectfully dissent. The authority of a trial judge to set aside a verdict and order a new trial in the interest of justice pursuant to CPLR 4404 (a) “is predicated on the assumption that the Judge who presides at trial is in the best position to evaluate errors therein .... The Trial Judge must decide whether substantial justice has been done [and] whether it is likely that the verdict has *1059been affected [by the errors, and the Trial Judge] . . . ‘must look to his [or her] own common sense, experience and sense of fairness rather than to precedents…