Appeals: Mildred Hersh v. New York City Transit Authority (Interlocutory Appeal)

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290 A.D.2d 258, *; 735 N.Y.S.2d 527, **;
2002 N.Y. App. Div. LEXIS 109, ***
Mildred Hersh, Plaintiff-Respondent, v. New York City Transit Authority, et al., Defendants-Appellants. Mildred Hersh, Plaintiff-Appellant, v. New York City Transit Authority, et al., Defendants-Respondents.
29, 30
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
290 A.D.2d 258; 735 N.Y.S.2d 527; 2002 N.Y. App. Div. LEXIS 109
January 8, 2002, Decided
January 8, 2002, Entered

CASE SUMMARY

PROCEDURAL POSTURE: The Supreme Court, New York County (New York), granted plaintiff's motion to set aside the verdict insofar as to order a new trial on the issue of damages only, and denied plaintiff's motion for summary judgment on the issue of liability. Plaintiff and defendants, transit authority and others, cross appealed the decision.

OVERVIEW: The appellate court held that while after a jury was discharged, jurors could not impeach their verdict, a special verdict was not inviolate and could be set aside under circumstances where the verdict was the demonstrable result of juror confusion. Here, the record established that the trial court failed to instruct or clarify to the jury that, in making its determination of damages, it should not have taken into consideration the apportionment of liability. Also contributing to the jury's confusion in this regard was the verdict sheet, which in questions seven and 10 referred to the full dollar amount of damages while requesting the jury simply to set forth damages without reference to the full dollar amount in question nine. The jury manifested its confusion by requesting clarification and guidance on the use of its apportionment of liability, but the trial court's response was non responsive. The appellate court held the lack of proper instructions respecting the jury's use of its apportionment findings was brought to the trial court's attention before the jury rendered its verdict and was discharged, and thus a curative instruction could have been given.

OUTCOME: The order granting the motion to set aside the verdict and for a new trial on damages was unanimously affirmed, without costs. The appeal from the order which denied plaintiff's motion for summary judgment on the issue of liability was unanimously dismissed, without costs, as moot.

CORE TERMS: juror, apportionment of liability, dollar amount, requesting, discharged, summary judgment, unanimously, moot

CORE CONCEPTS

Civil Procedure : Trials : Special Verdicts & Interrogatories

While after a jury is discharged, jurors may not impeach their verdict, a special verdict is not inviolate and may be set aside under certain circumstances such as where the verdict is the demonstrable result of juror confusion.

COUNSEL: For Plaintiff-Respondent: Edward Sivin.

For Defendants-Appellants: Lawrence Heisler.

For Plaintiff-Appellant: Edward Sivin.

For Defendants-Respondents: Lawrence Heisler.

JUDGES: Nardelli, J.P., Tom, Sullivan, Ellerin, Rubin, JJ.

OPINION: [*258] [**527]

Order, Supreme Court, New York County (Eileen Bransten, J.), entered on or about June 8, 2001, which, to the [*259] extent appealed from as limited by the brief, granted plaintiff's motion to set aside the verdict insofar as to order a new trial on the issue of damages only, unanimously affirmed, without costs. Such trial shall commence forthwith. Appeal from order, same court and Justice, entered January 22, 2001, which denied plaintiff's motion for summary judgment on the issue of [**528] liability, unanimously dismissed, without costs, as moot.

While defendants are correct that, after a jury is discharged, jurors may not impeach their verdict (see, Sharrow v Dick Corp., 86 N.Y.2d 54, 60-61, 629 N.Y.S.2d 980, 653 N.E.2d 1150), "a special verdict is not inviolate and may be set aside under certain circumstances" such as [***2] where the verdict is the demonstrable result of juror confusion ( Wingate v Long Island R.R., 92 A.D.2d 797, 460 N.Y.S.2d 42). Here, the record establishes that the trial court failed to instruct or clarify to the jury that, in making its determination of damages, it should not have taken into consideration the apportionment of liability. Also contributing to the jury's confusion in this regard was the verdict sheet, which in questions 7 and 10 referred to the "full dollar amount of damages" while requesting the jury simply to set forth "damages without reference to the "full dollar amount in question 9. The jury manifested its confusion by requesting clarification and guidance on the use of its apportionment of liability but the trial court's response was non responsive. The lack of proper instructions respecting the jury's use of its apportionment findings in reaching its award of damages was brought to the court's attention before the jury rendered its verdict and was discharged, and thus a curative instruction could have been given. Accordingly, even without considering the jurors' letters and affidavit, the record properly raises for our consideration the issue [***3] of whether the jurors' verdict accurately reflects the amount of damages the jurors intended plaintiff to receive (see, Hoffman v Domenico Bus Serv., Inc., 183 A.D.2d 807, 584 N.Y.S.2d 122).

In light of the jury verdict as to liability, the appeal from the order denying plaintiff's motion for summary judgment is moot.

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