Piacente v Bernstein,

127 A.D.3d 1365, 6 N.Y.S.3d 793 [3rd Dept., 2015]

At the beginning of the trial, where there are six jurors in the box, plus alternates, should the alternates be separately designated from the beginning? Or, should the designation of alternates be made just before the jury retires to deliberate? The perceived problem with advance designation of alternates is that the alternates might assume that they will not be needed, and so be tempted to pay less than full attention to the trial. Delaying the designation maintains the suspense, and is thought to make all of the jurors more likely to concentrate.

This case presented a conflict between the CPLR and local rules for the designation of alternates, and it is noted here only to point out the problem. Supreme Court, Albany County, held that the local rule could not be imposed over a party’s objection, and wound up directing a new trial. The Appellate Division contented itself with noting that Supreme Court acted within its discretion, but did not resolve the conflict in procedures.

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Tomorrow, March 14, 2015, is Pi Day. (3.1415, don’t you see?) In honor thereof, I present:

Kumar v PI Assoc., LLC,

___ AD3d ___, 2015 NY Slip Op 00849 [1st Dept., 2015]

When a verdict is internally inconsistent, the allowable remedies are either sending the jury back to reconsider or a new trial. The trial court may not resolve the inconsistency by making its own findings of fact.

This was a sidewalk trip-and-fall in front of a storefront owned by the defendant PI Associates and leased to the defendant Pretty Girl. The jury found that the plaintiff, PI and Pretty Girl were all negligent, but that only Pretty Girl’s negligence was a proximate cause of the accident. The jury then apportioned fault at 80% against Pretty Girl and 10% each against plaintiff and PI. The apportionment against plaintiff and PI was, of course, inconsistent with the finding of lack of causation.

The inconsistency was immediately recognized by the court and the parties. Rather than send the jury back for further consideration, the court discharged the jury and entertained motions. Plaintiff moved to set aside the inconsistent verdict and for a directed verdict finding that PI’s negligence was a proximate cause. PI, for its part, moved to set the inconsistent verdict aside and for a directed verdict setting its share of fault at zero. Supreme Court chose a third alternative, setting the verdict aside and issuing a directed verdict finding the negligence of both plaintiff and PI to have been proximate causes of the accident. Read More

Varano v Forba Holdings, LLC,

___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 01090 [4th Dept., 2015]
This dental malpractice case resulted in a defense verdict. After the jury had been discharged, one juror complained that a member of the trial audience had been “stalking” the jurors during lunch and other recesses in the trial. The juror described the behavior as “creepy.” It turned out that the person was representative of the defendants’ insurer, there to observe the trial on its behalf.

The court interviewed the juror in camera, but failed to notify counsel or obtain their consent. Counsel were not given any opportunity to participate in the interview or to be heard concerning the procedure. The court interviewed the complaining juror only, and not the other jurors. While plaintiff’s motion to set the verdict aside was pending, the court prohibited counsel from contacting any of the jurors. Since the evidence before the court was thereby limited to the statements of the complaining juror, the defendants were, as the Fourth Department noted, precluded from any meaningful opposition to the motion and the result was “a foregone conclusion.” The trial court set the verdict aside on the grounds of improper outside influence and ordered a new trial.

The Fourth Department found the one-sided and unduly limited manner of the court’s investigation to be an abuse of discretion and reversed. On the limited record, the court found itself unable to determine if there in fact had been any influence on the jury which would likely have impacted the verdict. It therefore remitted for a full evidentiary hearing.

Tricham Hous. Assoc., L.P. v Klein,

113 A.D.3d 432, 978 N.Y.S.2d 162 [1st Dept., 2014]

Where is the line in compensating a fact witness?

“In an attempt to settle the claims and counterclaims between them, plaintiff and defendant Emanuel Panitz entered into a Memorandum of Understanding (MOU) pursuant to which Panitz’s legal fees would be paid, provided that the claims of defendants Allan Klein, Lobby Design Group, and Steeltech SA (the LDG defendants, collectively) failed. In exchange for this, Panitz assigned plaintiff his remaining cross claims against the LDG defendants. This agreement is void and unenforceable as against public policy. Although his claims against plaintiff have been settled, Panitz is still a witness in this action. Permitting the MOU to stand as it is, with the payment of Panitz’s legal fees conditioned on the failure of his former co-defendants’ claims, creates an incentive for Panitz to falsify his testimony, an incentive that has long been disfavored.”

In 2013, we saw Caldwell v Cablevision Sys. Corp., where the Court of Appeals allowed a fact witness, who happened to be a physician, to demand and collect a fee of $10,000 for one hour of testimony. Read More

Patino v County of Nassau,

___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 00509 [2d Dept., 2015]

Two golf carts collided on a turn in a path at the Garden City Country Club. The plaintiff, driver of one cart, was injured, severely enough to need “numerous surgeries.” The driver of the other cart claimed that the plaintiff was speeding on the cart path.

Plaintiff here moved for a unified trial, on the grounds that proof of the injuries he sustained would support his claim that he was not speeding and hence bore significantly on the issue of liability. As proof, he submitted an affidavit from an expert in mechanical engineering, accident reconstruction and biomechanics claiming that the injuries proved that he could not have been traveling more than three miles per hour. Supreme Court agreed, and ordered a unified trial.

The Appellate Division, however, wasn’t buying it and reversed.

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Fudge v North Shore-Long Is. Jewish Health Servs. Plainview & Manhasset Hosps.,

117 A.D.3d 783, 986 N.Y.S.2d 490 [2d Dept., 2014]

Dismissal of a cause of action is only rarely warranted on opening statements alone. Here, in a medical malpractice wrongful death case, the court went so far as to dismiss a case during the plaintiff’s opening, on its own motion. Unsurprisingly, the Appellate Division reversed, and sent the matter back for a new trial, before a different Justice. Read More