michael a. bottar, post-trial practice in new york state courts: procedure and pitfalls

Post-Trial Practice In New York State Courts: Procedure and Pitfalls

Michael A. Bottar, Esq. Bottar Leone, PLLC 1600 AXA Tower II 120 Madison Street Syracuse, NY 13202 T: (315) 422 3466 F: (315) 422 4621 [email protected] www.bottarleone.com In and For Upstate New York. Since 1983.

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Post-Trial Practice In New York State Courts: Procedure and Pitfalls P a g e | 1

©2013 Michael Anthony Bottar, Esq. · Bottar Leone, PLLC · 1600 AXA Tower II · 120 Madison St. · Syracuse, NY 13202 · (315) 422-3466 · bottarleone.com

NB: Nota Bene

This is a survey of New York case law. It is intended to provide only a starting

point for the Bar. Whether by accident or design, case law cited in the materials is not

exhaustive. There may be minority or contrary case law on any given point.

Questions, comments, or concerns, as well as requests for reproduction, should

be submitted to the author by email at [email protected].

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TABLE OF CONTENTS

I. Introduction 3

II. Format of the Verdict 3 A. General Verdict 3 B. General Verdict With Answers To Written Interrogatories 4 C. Special Verdict 7

III. Polling the Jury 7

IV. Defective Verdicts 16

A. Timing for Challenge 16

a. Before Discharge 16 b. Utility of Juror Affidavits 16

B. Identifying Defects 20

a. Incomplete or Inaccurate Verdicts 20 b. Inconsistent Verdicts 23 c. Compromise Verdicts 27 d. Quotient Verdicts 31

V. Challenging the Verdict In Post-Trial Motions 32

A. Generally 32 B. Timing 34 C. Form 36 D. Grounds 36

a. Contrary to Law or Against Weight of Evidence 36 b. Interests of Justice 38

1. Voir Dire 38 2. Continuance 38 3. Excessive/Inadequate Verdict 40 4. Mistakes and Misconduct 40

a. Counsel 41 b. Court 44 c. Party 48 d. Juror 49

5. False Testimony and Perjury 51 6. Surprise During Trial 52

Appendix 53

The Author 67



I. INTRODUCTION

Many practitioners believe that it’s the jury’s job to get the verdict right.

Theoretically, this is true. However, practically speaking, it is the job of the court and

trial counsel to ensure that a jury has, before discharge, properly analyzed and correctly

delivered a verdict. Despite pattern jury instructions, court rules, and various

worksheets, deliberations can go awry in a number of ways, many of which are

discussed, infra.

II. FORMAT OF THE VERDICT

Many of the mechanics of a jury trial are governed by CPLR Article 41, including

e.g., issues triable, the number of jurors, alternates, juror qualifications, challenges,

instructions on the law, entry of a verdict, and procedure when jurors disagree. In

addition to these nuts-and-bolts guidelines, CPLR 4111 provides guidance with respect

to general verdicts, special verdicts, and interrogatories.

A. General Verdict

A general verdict is “one in which the jury finds in favor of one or more of the

parties.” N.Y.C.P.L.R. 4111(a). In common parlance, this is the verdict where the jury

“finds for the plaintiff” or “finds for the defendant.”1 A general verdict is not ideal for

complicated cases. See Bolm v. Triumph Corp., 58 A.D.2d 1014 (4th Dept. 1977)

(ordering new trial and directing that interrogatories be used to spell out the elements of

1 See New York PJI 1:95, GENERAL VERDICT, which provides:

In reporting your verdict to the court, you will state either that it is in favor of the defendant or that it is in favor of the plaintiff. If your verdict is in favor of the plaintiff, you will state the amount you award to the plaintiff.

An exemplar general verdict sheet is set forth in the Appendix at page 54.



the various causes of action and asking the jury to make specific findings with respect to

each).

B. General Verdict With Written Answers To Interrogatories

A general verdict with written interrogatories is a hybrid.2 It asks the jury to find

for one side or the other and, separately, asks the jury to answer questions so that the

court and parties have more information about how or why the jury arrived at its

conclusion.

The trial court has authority to submit written interrogatories to a jury. See, e.g.,

Marine Midland Bank v. John E. Russo Produce Co., Inc., 50 N.Y.2d 31, 40 (1980)

(condoning the submission of 12 interrogatories to the jury in case involving bank fraud);

National Equipment Corp. v. Ruiz, 19 A.D.3d 5 (1st Dept. 2005) (proper for jury to

answer interrogatories); Martelly v. New York City Health and Hospitals Corp., 276

A.D.2d 373 (1st Dept. 2000) (general interrogatory on liability followed by six more

specific interrogatories addressing theories of liability acceptable in medical malpractice

lawsuit). Written interrogatories are a “technique especially well-suited to cases with

multiple parties and legal theories.” Id., citing Dore v. Long Island R.R. Co., 23 A.D.2d

502 (2d Dept. 1965).

If the jury is asked to return a general verdict with answers to interrogatories, it is

critical that the court provide adequate instructions for the jury to render a general

verdict and answer interrogatories. To put it another way, the jury cannot be left without

guidance about how to answer the questions. Also, when wording interrogatories,

2 An exemplar general verdict sheet with interrogatories is set forth in the Appendix at pages 55-56.



courts must be careful to ensure that the jury is not given the impression that it must

reach a particular conclusion. See Miocic v. Winters, 66 A.D.2d 770 (2d Dept. 1978)

(new trial because court failed to amplify its charge so as to negate the concept that if

the distance from the guardrail to the curb was wide enough to walk on, the plaintiff was

guilty of contributory negligence).

In most cases, the hybrid course proceeds without issue. That is, jurors say

“yay” or “nay” about liability and check “yes,” “no,” or otherwise respond to simple

questions about, e.g., which defendant is liable, or under what theory of liability the

plaintiff should recover. See, e.g., Lunn v. Nassau County, 115 A.D.2d 457 (2d Dept.

1985); Radtke v. Yokose, 87 A.d.2D 220 (3d Dept. 1982); Hagler v. Consolidated

Edison Co. of New York, Inc., 99 A.D.2d 725 (1st Dept. 1984).

However, juries occasionally answer the general verdict question in a manner

inconsistent with how they answered the interrogatory questions. When this happens, a

court must analyze the interrogatory answers for internal consistency. If the

interrogatory answers are consistent with each other, then the court shall (1) “ direct the

entry of judgment in accordance with the answers, notwithstanding the general verdict,”

or it (2) “require the jury to further consider its answers and verdict,” or (3) “order a new

trial.” N.Y.C.P.L.R. 4111(c). If the interrogatory answers are not consistent with each

other, the Court shall (1) “require the jury to further consider its answers and verdict,” or

(2) “order a new trial.” Id.



The manner in which a jury answered interrogatories was at issue in Marine

Midland Bank v. Russo Produce Co., 50 N.Y.2d 31 (1980). The plaintiff in Marine

Midland filed suit to impose liability on two corporate customers for fraud and

conversion from check kiting.3 As part of deliberations, the jury was asked to return a

general verdict and to answer twelve interrogatories. Interrogatories 1-10 spoke to

which defendants were liable. Interrogatories 11 and 12 addressed the dollar amount of

the bank’s loss and whether the bank’s losses had already been satisfied by a demand

note. The jury answered 1-10 in the negative – meaning the defendants were not liable.

It then wrote $309,800 for interrogatory 11. Interrogatory 12 went unanswered. The

clerk never asked whether the jury had reached a general verdict. Before the jury was

discharged, the bank argued that the answers to 1-10 were inconsistent with 11. While

the bank did not object to discharging the jury, it moved to set aside the verdict on the

grounds that the interrogatory answers were inconsistent with one another. Two days

later the bank also argued that the jury should have been asked to clarify its answers

and that the absence of a general verdict was a fatal defect. The trial judge denied the

bank’s motion(s). The appellate division reversed in part and affirmed in part. See

Marine Midland Bank v. Russo Produce Co., 65 A.D.2d 950 (4th Dept. 1978). The

Court of Appeals held that the jury’s failure to report a general verdict was not fatal as

the court may “prefer the specific over the general by entering judgment in accordance

with the answers the interrogatories has induced.” Marine Midland, 50 N.Y.2d at 41.

3 A practice where checks are drawn against deposits which have not been cleared through the bank collection process.



The Court also noted that the bank “waived its objections by failing to press them when

it would have been possible to prevent or correct the ‘error.’” Id.

The Court of Appeals held that the jury’s failure to report a general verdict along

with answers was not fatal to the verdict as a court is permitted to prefer the specific

over the general.

C. Special Verdict

A special verdict is “one in which the jury finds the facts only, leaving the court to

determine which party is entitled to judgment thereon.” N.Y.C.P.L.R. 4111(a).4

III. Polling The Jury

A jury may deliver its verdict orally or in writing. Customarily, the writing is signed

by the jurors and returned in a sealed envelope which may, or may not, contain a

verdict worksheet.

It is well-settled that parties have an absolute right to poll the jury after learning of

its decision. The reasoning behind the right to poll the jury stems from the possibility

that a juror was coerced into the majority, or changed his or her mind between the time 4 See New York PJI 1:97, GENERAL INSTRUCTION – SPECIAL VERDICTS, which provides:

This case will be decided on the basis of the answers that you give to certain question that will be submitted to you. Each of the questions asked called for [Insert appropriate phrase, such as (a “Yes” or “No” answer), (some numerical figure), (some percentage), etc.]. While it is important that the views of all jurors be considered, five of the six of you must agree on the answer to any question, but the same five persons need not agree on all of the answers. When five of you have agreed on any answer, the foreperson of the jury will write the answer in the space provided for each answer and each juror will sign in the appropriate place to indicate (his, her) agreement or disagreement.

An exemplar special verdict sheet is set forth in the Appendix at pages 57-66.



that deliberations end and when the verdict is reported. Simply stated, a verdict may

not be deemed “finished or perfected” until it is recorded, and there is no recording

without a jury poll where one has been requested. See Warner v. New York Central, 52

N.Y.437 (1873).

The right to poll the jury exists despite the availability of a signed and sealed

verdict sheet. To put it another way, 5 or 6 signatures on a verdict sheet are no

substitute for the opportunity to have each juror announce in open court his or her

position. See Dore v. Wyer, 1 A.D.2d 973 (2d Dept. 1956) (even though ten jurors had

signed verdict sheet, which was unanimous, it was an error for the trial court to deny

plaintiff’s polling request as “unnecessary” because her right was absolute).

While a party has the right to poll the jury, it is a somewhat unpopular practice at

the conclusion of a trial and, likely due to exhaustion or frustration, a request to poll may

be mishandled by counsel, the court, and/or both. Where counsel: (1) does not ask to

poll the jury, (2) declines the court’s invitation to poll the jury, (3) yields without objection

to pressure from the court to skip the exercise, or (4) withdraws a request to poll, the

verdict will be recorded and any issues relating to polling are unpreserved for appellate

review. See, e.g., Farhart v. Matuljak, 283 A.D.977 (3d Dept. 1954) (After hearing the

verdict counsel asked to poll jury. In response, the trial court stated “well, it is a

unanimous verdict,” and counsel did not press the matter further. On appeal, the Third

Department stated “we do not think that counsel made his position sufficiently clear to

the court to make the question available upon appeal. The trial court did not deny his

request. No ruling was made at all. The court merely made a comment, and when

counsel immediately abandoned the subject the court might well have assumed that



counsel acquiesced that the polling was unnecessary. With complete propriety counsel

might well have stated that nevertheless he wished the jury polled, or asked for a

definite ruling. When he did not do so we do not think there was a refusal to have the

jury polled which constitutes error on appeal”).

Recently, the issue of polling made its way to the Court of Appeals in Holstein v.

Community General Hospital of Greater Syracuse, see 20 N.Y.3d 892 (2012). At the

trial level, the jury returned a verdict for the plaintiff in a medical malpractice action.

Counsel for the defendant “ask[ed] that the jury be polled” and the Court responded

“Jury be polled, they have signed. They each have individually signed.” 86 A.D.3d 911,

912 (4th Dept. 2011). Defense counsel then stated “Okay. All right. Thank you.” Id.

Thereafter, the jury was excused. Id. On appeal, the defendant argued that the Court

has violated its right to poll the jury. Id. The Fourth Department held that “defense

counsel was afforded an opportunity to clarify her request prior to the jury being

discharged and when defense counsel immediately abandoned the subject, the court

might well have assumed that defense counsel acquiesced that the polling was

unnecessary.” Id., quoting Farhart v. Matuljak, 283 App.Div.977, 978 (3d Dept. 1954)

(internal quotations omitted). As defense counsel did not make her position “sufficiently

clear to the court to make the question available on appeal,” the verdict was affirmed.

Id.5 The Court of Appeals agreed, stating that “it was not unreasonable for the trial

5 A dissent authored by Presiding Justice Scudder and Justice Mortoche noted that a new trial was necessary because there was “no question that defense counsel unequivocally requested that the jury be polled” and there was no reason “for defense counsel to make a formal exception to the ruling of the court.” Further, the dissent noted that “[a]ny ambiguity in the court’s response should not be held against defense counsel.”



court to conclude that the request had been withdrawn or waived in light of the nature of

counsel’s response to the judge’s inquiry.” Holstein, 20 N.Y.3d at 893.

Another recent Court of Appeals decision also addressed jury polling. See Duffy

v. Vogel, 12 N.Y.3d 169 (2009). At the trial level, the jury concluded that neither

defendant was liable to the plaintiff for medical malpractice; however, two non-party

physicians were liable for damages in the amount of $1,500,000. 49 A.D.3d 22, 23 (1st

Dept. 2007). As part of deliberations, the jury was asked to answer 21 interrogatories.

The first 10 questions dealt with the defendants’ liability, if any. The next 5 questions

dealt with the non-party physicians’ liability, if any. The next 2 questions dealt with the

plaintiff’s responsibility, and the remaining 3 questions asked the jury to allocate

responsibility between the individuals named at trial and award damages.

Even though the jury should have stopped after it concluded that the named

defendants were not liable, it continued to answer questions with respect to the non-

party physicians, divided liability between them 60/40, and awarded damages. The

attentive plaintiff’s attorney suspected that the verdict was inconsistent and that the jury

was confused. His request for clarifying instructions and time for further deliberations

was denied. Correctly seeking to develop a record of juror confusion, he then asked

that the jury be polled. The request was denied and the jury was discharged.

Subsequently, the trial court set aside the verdict on the grounds that it had committed

reversible error by failing to poll the jury.



On appeal, the First Department applied a prejudice analysis, reversed the trial

court and reinstated the verdict. After acknowledging that the plaintiff had an absolute

right to poll the jury, it reasoned that the plaintiff had not been harmed because the

verdict was announced in open court and, as part of that process, the clerk posed 16

questions to the foreperson which were answered and reported as unanimous Further,

“[a]t no time while this verdict was being delivered did any member of the jury give any

indication that he or she had an exception, objection nor reservation as to any of the

answers given by the foreperson to any of the interrogatories on the verdict sheet.”

The Court of Appeals reversed the appellate court, stating that “proper

publication of a verdict in open court . . .is not to be cast aside as a mere formality on

the theory that jurors are prospectively bound to act in accordance with their verdict

sheet signatures.” The Court also stated “we do not think it sensible to expect that a

juror would in open court spontaneously pipe up his or her disagreement with an

announced verdict. Jurors who have been pushed to a verdict about which they have

serious reservations are not likely moments later in the solemn and intimidating

atmosphere of the courtroom attending the announcement of the verdict to feel free to

express their reservations unless it is made clear that it is permissible to do so and an

opportunity is provided.”

“Is this your verdict?” This is customary language employed by a clerk when

polling a jury. In fact, this may be the only proper question when polling. See Labar v.

Koplin, 4 N.Y. 547 (1851) (a party has no right to insist on any question being put to

jurors other than “Is this your verdict?”). Even so, polling is often conducted in different

ways and by different people without incident. See, e.g., Sharrow v. Dick Corp., 86



N.Y.2d 54 (1995) (polling acceptable where clerk departed from usual procedure and

conducted the poll by reading each question on the verdict sheet and then asking each

juror in turn his or her verdict on the question); Lopez v. Kenmore-Tonawanda School

Dist., 275 A.D.2d 894 (4th Dept. 2000) (acceptable where court asked “is this verdict in

all respects your verdict?” and each juror replied in the affirmative).

If counsel does do not object to the manner in which the jury is polled, the right to

challenge the method is unpreserved for appellate review. See e.g., Rokitka v. Barrett,

303 A.D.2d 983 (4th Dept. 2003) (“[b]y failing to object to the procedure chosen by the

court for polling the jury, defendant failed to preserve for our review his contention that

the procedure was improper”).

The purpose of polling is to make sure each juror has had an opportunity to

participate in deliberations and agrees with the verdict. Periodically, polling the jury

uncovers an issue in the jury room revealed through an unorthodox answer. When an

issue is uncovered, the Court likely has a duty to conduct a limited inquiry to inquire into

the juror’s answer.6

6 See generally N.Y. C.P.L. 310.80, which provides:

After a verdict has been rendered, it must be recorded on the minutes and read to the jury, and the jurors must be collectively asked whether such is their verdict. Even though no juror makes any declaration in the negative, the jury must, if either party makes such an application, be polled and each juror separately asked whether the verdict announced by the foreman is in all respects his verdict. If upon either the collective or the separate inquiry any juror answers in the negative, the court must refuse to accept the verdict and must direct the jury to resume its deliberation. If no disagreement is expressed, the jury must be discharged from the case, except as otherwise provided in section 400.27.



A juror’s response – or non-response – was at issue in Sharrow v. Dick Corp., 86

N.Y.2d 54 (1965). The plaintiff in Sharrow filed suit for injuries sustained while using a

Genie hoist to move a metal lockbox at a construction site. At the conclusion of

deliberations, the foreperson announced that five members of the jury had agreed to a

verdict for the plaintiff in the amount of $430,000. Defense counsel asked for the jury to

be polled. When Juror No. 5 was asked “whether there was a violation of the Labor

Law for which the defendants were liable,” she answered “no.” When Juror No. 5 was

asked “whether the Labor Law violation was a proximate cause of plaintiff’s injuries,” the

following dialogue occurred:

Juror No. 5: I have no--. Clerk: Your verdict is no? Court: Well, she didn’t make a determination because she didn’t move on.

When the polling returned to Juror No. 5 on damages, the following dialogue occurred: Clerk: Number 5? No response? Juror No. 5: No. Juror No. 5’s response to the remaining three questions was “[n]o response.” At the

conclusion of polling, counsel for the defendant argued that the verdict was inconsistent.

He also argued that it appears that Juror No. 5 did not participate in deliberations on

any issue other than liability. Defense counsel asked the court to conduct a limited

inquiry into Juror No. 5’s participation during deliberations. The trial court denied the

request.



The Appellate Division held that there was no evidence that the defendant “had

been deprived of the constitutional right to trial by six jurors.”7 Two dissenters stated

that the court should have conducted investigated the extent of Juror No. 5’s

participation. The Court of Appeals agreed, stating that “the trial court erred in refusing

to conduct a limited inquiry to determine whether juror No. 5 participated in the verdict

process, an error that implicates the constitutional right to a trial by a six-member jury

and mandates a new trial.” 86 N.Y.2d at 59.

A proper inquiry from the court should lead to necessary clarification of the juror’s

answer. The verdict is not invalid where the juror’s answer, following inquiry, is different

than the original answer. See Bernard v. Seyopp Corp., 11 A.D.2d 140 (1st Dept.

1960), aff’d 9 N.Y.2d 676 (1961). In Bernard, a verdict was announced by the

foreperson and the jury was polled. Juror No. 12 stated that the foreman’s

announcement did not represent his verdict. Following a colloquy with the juror, the

court learned that Juror No. 12 was in favor of a recovery for the plaintiff, but that he

was not in accord with the amount. However, he was agreeable to the amount. The

Court ordered the jury to deliberate further and the damage award was confirmed.

Counsel did not object to the court’s colloquy or additional time for deliberations. The

verdict was affirmed. 7 See also Arizmendi v. City of New York, 56 N.Y.2d 753 (1982) (“Appellants contend that they were effectively deprived of their constitutional guarantee of a jury of six persons when after a poll a juror revealed that he neither deliberated nor voted on the issue of damages because he was the sole dissenter on the issue of liability. Appellants first raised this claim, however, in connection with a post-trial motion to set aside the verdict. In that appellants failed to raise this objection before the jury was discharged and thereby afforded the trial court no opportunity to correct the claimed error by returning the jury for additional deliberation on the issue of damages, appellants have waived their objection to the juror's nonparticipation in deliberations or voting on that issue.”)



Juror polling answers were recently at issue in People v. Simms. 13 N.Y.3d 867

(2009). During jury polling to confirm a guilty verdict, nine jurors answered “yes” before

Juror No. 10 answered “[w]ell it is my verdict, although I feel like I was pressured to

make that decision” and “[i]t is my verdict.” The trial judge interjected “[t]hat is your

verdict; is that correct?” and the juror replied “yes.” The remaining two jurors then

answered “yes.” The trial judge then spoke with Juror No. 10 outside the presence of

the other jurors to find out more about the “pressure.” The juror eventually answered

“[w]ell, I believe that it was pure chaos in there. Everyone was speaking at the same

time.” Also, “I meant pressured by the fact that everyone is standing up, yelling at me,

why can’t you see it that way, why can’t you see it that way? Everyone is yelling like

that. After eight hours of that you have to give in.” Defense counsel sought a mistrial.

The Court accepted the guilty verdict and the jury was discharged.

On appeal, the Second Department reversed and ordered a new trial. The Court

of Appeals affirmed reversal, stating that “[w]hile the trial judge established that there

was no pressure exerted on juror number 10 emanating from outside the jury room, he

did not clear up whether there was ‘duress arising out of matters extraneous to the

jury’s deliberations or not properly within their scope, although perhaps occurring with

the jury room.” Moreover, the “trial judge never dispelled the ambiguity created by juror

number 10’s multiple responses during the jury poll by simply asking her, for example,

whether she found defendant guilty . . . based on the evidence.”8

8 A dissent authored by Justice Smith noted that the juror had not been coerced because she has not been “subjected to a threat of physical harm” and, therefore, her views had not been coerced with sufficient force to justify a new trial.



IV. Defective Verdicts A. Timing for Challenge

a. Before Discharge

A verdict is not final until the jurors are discharged. Therefore, the time to identify

and attempt to correct a defective verdict is when the jurors are still captive. After the

jury has been released, it is all but impossible to recall the jury to deliberate further

about the trial. See, e.g., Moisakis v. Allied, 265 A.D.2d 457 (2d Dept. 1999), lv. denied,

95 N.Y.2d 752 (2000) (after a verdict had been accepted and the jury discharged, the

trial court recalled the jurors a week later and questioned them about possible juror

confusion, a procedure the Second Department described as “totally unauthorized”);

Laylon v. Shaver, 187 A.D.2d 983 (4th Dept. 1992) (trial court, which recalled the jurors

after discharge in order to have them testify about the amount of damages they had

intended to award, and then amended the announced verdict to reflect that amount,

erred and “should not have allowed the jury to impeach its verdict”).

b. Utility of Juror Affidavits

Generally, a post mortem affidavit from a juror is not a proper vehicle to impeach

a verdict. See, e.g., Moisakis v. Allied Building Products Corp., 265 A.D.2d 457 (2d

Dept. 1999) (“problems with permitting such a procedure are apparent here. After the

jurors were discharged, they received extrajudicial communications from counsel for the

parties, and therefore were exposed to outside influences of the most prejudicial sort.

They then had the entire weekend to rehash the deliberations and formulate second

thoughts.”). This rule exists to “to ensure the finality of verdicts, prevent the harassment

of jurors and [to] protect the integrity of the deliberation process . . . .” Capital Med. Sys.



v. Fuji Med. Sys., U.S.A., 270 A.D.2d 728, 730 (3d Dept. 2000), lv. dismissed and

denied, 95 N.Y.2d 820 (2000).

However, in rare circumstances, a verdict may be “clarified” after discharge

through the introduction of juror affidavits. Generally, this exception to the rule applies

only where there: (1) is a ministerial or clerical error in reporting the verdict, or (2) is

evidence in the record of substantial confusion among the jurors. See, e.g., Shumway

v. Kelley, 109 A.D.3d 1092 (4th Dept. 2013) (no evidence of clerical error or confusion);

Selzer v. New York City Tr. Auth., 100 A.D.3d 157 (1st Dept. 2012) (no need to consider

juror affidavits because there was no evidence that verdict was “nonsensical”); Smith v.

Field, 302 A.D.2d 585 (2d Dept. 2003) (trial court properly considered juror affidavits

that spoke to amount jury intended to award for 20 years because there was an error “in

reporting and recording the actual verdict”); Hersh v. New York City Tr. Auth., 290

A.D.2d 258 (1st Dept. 2002) (“even without considering the jurors’ letters and affidavit,”

the verdict sheet and court instructions were confusing with respect to apportionment of

damages and, therefore, a new trial was proper); Hoffman v. Domenico Bus Serv., 183

A.D.2d 807 (2d Dept. 1992) (declining to consider 5 juror affidavits spelling out

confusion, but setting aside verdict because the jury did not receive proper instruction to

disregard liability verdict when calculating the amount of damages to award the plaintiff);

Lustyik v. Manaher, 246 A.D.2d 887 (3d Dept. 1998) (no basis to consider juror

affidavits because “a misunderstanding related to what monetary amount is referenced

by ‘total damages’ on the jury verdict does not” amount to a clerical or ministerial

mistake that would permit amendment of judgment); Rose v. Thau, 45 A.D.2d 182 (3d

Dept. 1974) (juror affidavits could be used to establish that the jury entered percentages



of faulty on the wrong lines). Courts reason that correcting the verdict is not

impeachment – rather, correction involves making sure a mistake does not prevent the

jury’s intended finding from being carried out. See Dalrymple v. William, 63 N.Y. 361

(1875).

Where an attorney seeks to remedy a clerical error, she likely needs evidence

from all of the members of the jury, i.e., an affidavit from each member of the jury about

how the panel’s verdict did not operate as intended. See, e.g., Herbst v. Marshall, 89

A.D.3d 1403 (4th Dept. 2011) (court erred by relying upon statement allegedly made by

jury foreperson in support of decision to set aside the verdict because statement was

brought to the court’s attention by hearsay statement of plaintiff’s attorney and not

through a juror affidavit); Capital Med. Sys., supra (rejecting post-trial attack on verdict

where “the allegations set forth in the juror affidavit submitted by plaintiff were

completely refuted by affidavits of the foreperson and three other jurors and two

alternates”); Grant v. Endy, 167 A.D.2d 807 (3d Dept. 1990) (juror affidavits may not be

considered because the jurors are not unanimous in the challenge); Wylder v. Viccari,

138 A.D.2d 482 (2d Dept. 1988) (“under certain circumstances unanimous post-trial

juror affidavits may be used to correct error in reporting verdict”).

The Fourth Department recently addressed the mechanics of post-trial verdict

“clarification” in Butterfield v. Caputo, 108 A.D.3d 1162 (4th Dept. 2013). The plaintiff in

Butterfield filed suit for medical malpractice. The jury returned a verdict for the plaintiff

that appeared to award her $60,000 over a 30 year period, i.e., $2,000.00 per year.

While plaintiff’s counsel did not seek clarification of this component of the damage

award before discharge, he did move to set it aside in his post-trial motion. Thereafter,



plaintiff’s counsel submitted a “supplemental motion” to correct the verdict. As part of

the “supplemental motion,” plaintiff’s counsel submitted affidavits from all six jurors who

stated that they understood and agreed that the plaintiff would receive $60,000 per year

for 30 years. This “clarification” stood to increase the verdict by $1,800,000. The trial

court agreed and “corrected” the verdict. The Fourth Department affirmed.9

A similar result was reached in Porter v. Milhorat. 26 A.D.3d 424 (2d Dept.

2006). The plaintiff in Porter filed suit for medical malpractice. The jury returned a

verdict for the plaintiff; however, there were issues with the verdict sheet. After

concluding that the physician’s negligence was a proximate cause of the plaintiff’s

shoulder injury, it awarded no past damages and $720,000 for future damages (even

though the verdict sheet instructed the jury to stop if they awarded no past damages).

The trial court directed the jury to complete the sheet again. The second time, the jury

awarded no past damages and stopped (as instructed). As the jury was being

discharged, the foreman questioned the trial court about the remaining (blank) pages of

the verdict sheet. After trial, the plaintiff’s attorney secured juror affidavits stating that

9 The backstory is fleshed out in a dissent penned by Justice Fahey. The verdict was returned on January 20, 2012. A scheduling order required that post-trial motions be filed by February 21, 2012. Both sides filed motions before the deadline. On March 3, 2012, while the post-trial motions were pending, the plaintiff’s attorney attended a college basketball game at the Carrier Dome in Syracuse and, while there, was approached by the jury foreperson. Apparently, the plaintiff’s attorney and foreperson agreed to speak about the verdict in greater detail at a more appropriate time and location. The two eventually spoke by telephone on March 8, 2012 and, during that call, the plaintiff’s attorney learned that the jury had intended to award $60,000 a year – not $60,000 in total. The plaintiff’s attorney was then granted permission to submit a “supplemental motion.” Justice Fahey concluded that the jury’s confusion with respect to gross versus net damages was not a ministerial error and, therefore, could not be corrected with juror affidavits.



the jury was confused during deliberations, and that they intended to award the plaintiff

$720,000 for past and future damages. A new trial was ordered.

B. Identifying Defects

There is limited time between the delivery of a jury verdict and juror discharge.

Consequently, attorneys must know how to quickly identify defects in the verdict and

must know what to say and when.10 The failure to act may result in waiver of issues in

post-trial papers as well as on appeal.

a. Incomplete or Inaccurate Verdicts

A verdict may be incomplete or inaccurate in a constellation of ways, e.g., where

a jury finds that the defendant deviated from the standard of care but leaves blank a

question about proximate cause, where a jury concludes that all defendants are liable

but fails to apportion fault between them, or where a jury concludes that a defendant is

liable but fails to record a damage figure.

10 See New York PJI 1:102, GENERAL INSTRUCTION – SUPPLEMENTAL CHARGE – TO CORRECT DEFECTIVE VERDICT, which provides:

Members of the jury, your verdict in this case does not (clearly, fully) decide all of the issue submitted to you. I, therefore, ask you to return to the jury room and consider the matter further. Under the law applicable to this case, plaintiff must show that [concisely restate the basic charge, pointing out the inconsistency or lack of clarity in the answers given by the jury]. With that in mind, I ask you now to deliberate further to reconsider [the answer to questions “___” (or other problem)] and to answer those questions in accordance with my instructions.



A verdict is not invalid just because it is incomplete. See Schnarch v. Owen, 124

A.D.2d 372 (3d Dept. 1986) (directing jury to deliberate further on unanswered fifth

interrogatory overlooked because it was placed on a separate sheet). Instead, an

incomplete verdict should be identified by counsel, discussed with the court, and

corrected through instruction11 followed by additional deliberations. See, e.g., Boothe v.

Manhattan, 68 A.D.3d 513 (1st Dept. 2009) (where jury failed to answer two

interrogatories in support of general verdict, court erred by directing jury to “complete

the verdict sheet” without informing counsel of the specific omissions and offering them

an opportunity to be heard).

An example of an incomplete verdict can be found in Ricchueto v. County of

Monroe, 267 A.D.2d 1012 (4th Dept. 1999). From the limited record available, it

appears that the jury became deadlocked during deliberations and was discharged. At

the time of discharge, the jury delivered a special verdict questionnaire to the court.

The questionnaire revealed: (1) that five of the six jurors agreed that the defendant was

negligent, and that the negligence was a proximate cause of the accident; (2) that six of

six jurors agreed that the plaintiff was also negligent; (3) that five of six jurors agreed

that the plaintiff and defendant were each 50% at fault. Only the issue of damages was

undecided. Counsel for the plaintiff argued in post-trial papers that he was entitled to

judgment on liability and a new trial on damage. The trial court disagreed and the

appellate division affirmed, noting that “[t]he jury did not announce its verdict in open

court, members of the jury were not polled, and plaintiff has not shown that the verdict

11 Counsel should make a record if they do not agree that additional instructions should be provided, or do not agree with the proposed instructions.



was entered in the minutes by the Clerk. Under the circumstances, there is no jury

verdict upon which the court could grant judgment.”

Where a jury fails to issue a complete verdict, the court should not simply

withdraw the incomplete interrogatory. See Grey v. United Leasing, Inc., 91 A.D.2d 932

(1st Dept. 1983). In Grey, the plaintiffs (husband and wife) filed suit for injuries

sustained when Kenneth Grey was struck in a crosswalk by a truck. At the end of trial,

the jury was asked to answer six interrogatories. The jury returned a verdict for the

plaintiffs which included an interrogatory answer that Kenneth Grey was 65% negligent

for the incident. The jury did not answer interrogatory IV, which asked “[w]hat is the full

amount of damages suffered by the plaintiff – Kenneth L. Grey?” and “[w]hat is the full

amount of damages if any, suffered by the plaintiff – Khanh Grey?” The trial court sent

the jury back for further deliberation. The jury returned – still without an answer to

interrogatory IV. At this juncture, the trial court withdrew interrogatory IV from the jury’s

consideration and accepted an incomplete verdict. The trial court then awarded

$50,000 to Kenneth Grey and $10,000 to Khanh Grey. On appeal, the First Department

noted that “it is obvious to us that the jury was hopelessly confused. At this point, the

Trial Court should have tried to charge the jury again.” Holding that the trial court’s

decision to withdraw the interrogatory was an “error,” the appellate court vacated the

judgment and the case was remanded for a new trial.



Occasionally a jury will deliberate in the face of instructions and substitute their

judgment for the questions on the verdict sheet. See Rivera v. Bronx-Lebanon Hosp.

Ctr., 70 A.D.2d 794 (1st Dept. 1979). Rivera was a medical malpractice lawsuit filed

against a hospital, orthopedist, and anesthesiologist. Before deliberations, the jury was

instructed that “if they found in favor of plaintiff and against one or more defendants,

they were to return a single verdict against all defendants found to be liable and, should

the issue arise, to apportion the amount of the recovery between the defendants in

proportion to their contribution to the results.” The jury ignored the Court’s instruction.

Instead, it returned separate verdicts – against the hospital and anesthesiologist on the

death claim for $50,000 and $15,000, respectively, and against the hospital and

anesthesiologist on the pain and suffering claim for $25,000 and $10,000,

respectively.12 While the trial court could have corrected the verdict, or sent the jury

back to return a verdict that met with its instructions, it did not. Instead, the court

attempted to harmonize the jury’s findings with its understanding of the legal issues.

The appellate division ordered a new trial.

b. Inconsistent Verdicts

While inconsistent verdicts usually occur in cases with multiple plaintiffs or

defendants and multiple theories of liability, they may crop up where a jury is, quite

simply, confused. Where there is confusion the court may order further deliberation.

See, e.g., Bowes v. Noone, 298 A.D.2d 859 (4th Dept. 2002) (court “properly instructed

the jury to reconsider its inconsistent findings and issued additional instruction to help

12 Counsel for the plaintiff and defendants did not challenge the verdict before the jury was discharged.



resolve any confusion”); Roberts v. County of Westchester, 278 A.D.2d 216 (2d Dept.

2000) (while it was proper to order further deliberation, it was an error to fail to provide

additional instructions). If, after identifying a potential inconsistency, a court directs a

jury to deliberate further and the jury does not change its answers, its determination is

that much stronger.13 In certain circumstances, a court may also conduct an inquiry into

clearly inconsistent interrogatory answers.

A potentially inconsistent verdict was addressed by the Second Department in

Soto v. Famulari. 28 A.D.3d 639 (2d Dept. 2006). The plaintiff in Soto filed suit for

personal injuries sustained when she fell down an exterior stairway at her home. The

home was owned by the defendant and the claims included negligent maintenance of

the stairs. The jury concluded that the defendant was negligent and that his negligence

was a proximate cause of the plaintiff’s injuries. The jury also concluded that the

plaintiff was negligent, but held the plaintiff’s negligence was not a proximate cause of

her injuries. Sensing an inconsistent verdict, the defendant moved to set aside the

verdict. The trial court concluded that the verdict might contain

“a potential inconsistency,” recharged the jury on negligence and proximate cause, and

sent them back for further deliberations. After additional deliberations, the jury returned

a verdict finding the defendant 70% at fault and finding the plaintiff 30% at fault. On

appeal, the Second Department held that the trial court did not err.14

13 Counsel should consider asking the court to enter the consistent portions of the jury verdict before returning the jury to deliberate on the inconsistent portions or the jury may start from scratch. 14 Following further deliberations, a jury to free to change its mind and this is not error. See, e.g., Mateo v. 83 Post Ave Assoc., 12 A.D.3d 205 (1st Dept. 2004) (“jury's



In addition to directing a jury to deliberate further, a court may inquire into an

imperfect verdict if there is evidence of “substantial confusion or ambiguity in the

verdict.”15 To start down this path, there must be some evidence of inconsistency on

the face of the interrogatory answers. See, e.g., Roberts v. County of Westchester, 278

A.D.2d 216 (2d Dept. 2000).

Whether there was inconsistency in the record was at issue in O’Donnell v.

Calderson, 293 A.D.2d 457 (2d Dept. 2002). The plaintiff in O’Donnell filed suit for

personal injuries. Before deliberations, the jury received a set of written interrogatories

which required “yes” or “no” answers on three questions relation to a section 5102(d)

serious injury. The jury was instructed that it should report to the court if its answer to

all three questions was “no.” The jury was also told it could ask questions if it did not

understand the instructions. The jury asked no questions and returned a verdict. The

court clerk asked the jury to report its answer to each of the three questions and the jury

negative response to interrogatory four, asking whether plaintiff's negligence was a substantial factor in causing her injuries, and 25% apportionment of fault against plaintiff in response to interrogatory five rendered its verdict inconsistent, and the trial court properly directed the jury to reconsider. The jury did so, coming back with a negative response to interrogatory three, asking whether plaintiff was negligent, and skipping interrogatories four and five. We reject defendant's argument that the reconsidered verdict evinces substantial jury confusion in that the jury, instructed to reconcile its answers to interrogatories four and five, instead changed its answer to interrogatory three. “On reconsideration, the jury was free to substantively ‘alter its original statement so as to conform to its real intention’, and was not bound by the terms of its original verdict . . .”); Ryan v. Orange County Fair Speedway, 227 A.D.2d 609 (2d Dept. 1996) (jury free to change its mind until verdict is entered).

15 Confusion must be evident through, e.g., jury notes, jury questions, interrogatory answers. The Court cannot speculate about deliberations and assume confusion. See, e.g., Martinez v. Te, 75 A.D.3d 1 (1st Dept. 2010) (no evidence that jury was confused and abdicated its responsibility).



answered “no” to each. That should have been the end of the case. However, for

reasons unknown, the court clerk asked the jury if it has answered any other questions

on the worksheet. The foreperson answered in the affirmative. Over objection from the

defendants, the jury was returned to the verdict room to deliberate further. Upon return

to the courtroom, the jury had a “yes” answer for one of the serious injury questions and

awarded the plaintiff damages for past and future pain and suffering.

On appeal, the Second Department noted that the “trial court should have

accepted the jury verdict as final once it answered the first three interrogatories in the

negative.” Id. Because “the jury gave clear and definitive answers to the first three

interrogatories and those answers were not internally inconsistent,” further inquiry by

the clerk “was superfluous at best, and did not change the fact that the jury had already

determined that whatever injury the plaintiff may have received was insufficient . . . .”

The judgment was reversed and the complaint was dismissed.16

16 See also Bradley v. Feiden, Inc., 8 N.Y.3d 265 (2007) (“Although the proof

adduced at trial primarily focused on an alleged defect in the defrost timer, there was also evidence that the fire originated in the refrigerator/freezer. Specifically, the Fire Department reports admitted into evidence identified the refrigerator/freezer as the origin of the fire. Fire investigator Hamilton along with the forensic consultant Redsicker, the only witnesses who did on-site investigations, both testified that the fire had its roots in the freezer part of the unit. Surely, a jury could rationally conclude that such an appliance was not fit for its intended purpose, regardless of whether the defrost timer was defective, and thus that GE breached the implied warranty of merchantability. The verdict sheet, as well as the jury instructions, specifically tied the strict products liability claim--but not the breach of warranty claim--to the defrost timer. Thus, a rational jury could have found that the defrost timer claim should be rejected, while also placing the source of the fire in the freezer. Since the jury was not asked whether the refrigerator was free from defect--only if the defrost timer was defective--the Appellate Division's opinion that the jury could not rationally find that the refrigerator was not defective, yet was nevertheless not fit to be used for its ordinary purposes, cannot be sustained here.



c. Compromise Verdicts

Compromise verdicts are impermissible and must be set aside.17 See, e.g.,

Figliomeni v. Board of Ed. Of City School Dist. of Syracuse, 38 N.Y.2d 178 (1975)

(holding that a retrial on all issues is necessary where it can be demonstrated that an

inadequate verdict was the result of a compromise on the issue of liability); Dean v.

Security Mut. Ins. Co., 21 A.D.3d 658 (3d Dept. 2005) (award of $0 for cabin and $3000

for contents was a compromise because “if the jury believed that plaintiff was entitled to

recover for his loss, the jury should have awarded plaintiff some monetary amount for

both the cabin and its contents. If the jury believed that plaintiff was responsible for the

fire, it should have concluded that he was not entitled to recover for the loss sustained

and, hence, should not have awarded any damages. In view of this apparent

contradiction, we agree with defendant that a new trial should be ordered on all

issues.”); Moreno v. Thaler, 255 A.D.2d 195, 196 (1st Dept. 1998) (“in view of the

sharply conflicting evidence on the issue of causation, plaintiff’s serious injury and the

jury’s inexplicably low award therefore, it was highly likely that the verdict was a

compromise verdict”); Sheffield v. New York City Housing Auth., 200 A.D.2d 369, 369

(1st Dept. 1994) (“Retrial is mandated on all issues where there is a strong likelihood

There was sufficient evidence presented to support the claim that the refrigerator was not fit for its ordinary purpose. Accordingly, the jury's verdict should be reinstated and the matter remitted to the Appellate Division for review of the facts.”).

17 Mere mention of the word “compromise” does not mean the verdict was a compromise verdict. See Manchester v. Bankhead Corp., 125 A.D.2d 740 (3d Dept. 1986) (juror’s description of counsel of deliberations as a “compromise” did not demonstrate an indication of an impermissible compromise verdict, where in the context stated, the word "compromise" was not used as a term of art with its specific legal meaning).



that the jury verdict results from a trade-off on a finding of liability in return for a

compromise on damages.”).

The stigma of a compromise should not be attached to a jury’s work unless it is

clear that no rational process could have led the jury to its decision. See, e.g., Rabito v.

Deer Park Mgt. Servs., LLC, 106 A.D.3d 798 (2d Dept. 2013) (conflicting evidence could

support verdict; no evidence of impermissible compromise); Schwartz v. Pierce, 57

A.D.3d 1348 (3d Dept. 2009) (where the evidence permits no basis for disagreement as

to amount, award other than that amount is evidence of a compromise verdict and

cannot stand); Schwartz v. Pierce, 57 A.D.3d 1348 (3d Dept. 2008) (jury’s award of

$21,400, which was $9,800 less than defendant’s claimed damage of $31,200, was not

a compromise because jury may have ascribed difference to any work performed by

oral contract).

Typically, compromise verdicts arise in big damage cases where liability is a

close call. In this circumstance, jurors horse-trade a finding of liability from some in

return for a compromise on damages from others. See, e.g., Zimnoch v. Bridge View

Place, LLC, 69 A.D.3d 928 (2d Dept. 2010) (where jury’s award for past and future

medical expenses after the first trial was substantially more than warranted by the

evidence or requested by the plaintiffs during their summation, there is a strong

likelihood that the damages award was the result of an impermissible compromise);

Mitchell v. Port Authority of N.Y., 65 A.D.3d 943 (1st Dept. 2009) (where jury awarded

$480,000 for future pain and suffering over 24 years, award of $20,000 for past pain

and suffering over 16 years was evidence of an impermissible compromise verdict);

Zgrodek v. McInerney, 651 A.D.3d 1106 (3d Dept. 2009) (finding of serious injury but no



past pain and suffering was a compromise verdict that, in conjunction with 15 minute

time limit imposed upon voir dire, required new trial); Mata v. Huntington Union Free

School Dist., 57 A.D.3d 738, 744 (2d Dept. 2009) (dissent notes that result may have

been by compromise because jury was in “untenable position of having to consider the

possibility of ascribing a percentage of liability to a five year old who momentarily broke

a rule that she may not have been aware of or who acted on an irresistible impulse on

the spur of a childish moment”); McKenna v. Lehrer McGovern Bovis, Inc., 302 A.D.2d

329 (1st Dept. 2003) (a trade-off on a finding of liability under scaffold law in return for a

compromise on damages is strongly indicated by a verdict that awarded nothing for pain

and suffering while simultaneously finding, as indicated by a substantial award for lost

earnings, that the accident caused a serious injury); Patrick v. New York Bus Serv., 189

A.D.2d 611 (1st Dept. 1993) (“Where 'the issue of liability was sharply and substantially

contested and plaintiff's injuries were serious and the jury's award inexplicably low for

such serious injuries' it is most likely that 'the verdict . . . was . . . a compromise verdict,

in that in addition to finding plaintiff partially responsible for the accident, the jury also

compromised on liability and damages by finding the total amount of plaintiff's injuries

much too low.’”).

Often times, a compromise verdict may be identified by a verdict:

• in an amount that is grossly inadequate given the injuries; • in an unusual denomination given the proof; • in an amount more/less than an uncontested figure; • awarding future pain and suffering damages without past pain and suffering

damages (or vice-versa); • awarding significant lost wages without a pain and suffering award; and/or • awarding significant future medical expenses without a pain and suffering

award.



If the court concludes that the jury reached a compromise verdict, it has two

choices: (1) order a new trial on liability and damages, or (2) order a partial trial on

damages only. Generally, where liability and damages are not intertwined, courts are

empowered to limit the new trial to the issue of damages. However, where liability and

damage are intertwined, or where there is evidence that liability votes were traded for

damage votes, a whole new trial must take place. See, e.g., Figliomeni, supra, 38

N.Y.2d at 182 (proper to have new trial on damage only); Moreno v. Thaler, 255 A.D.2d

195 (1st Dept. 1998) (compromise verdict requires “new trial on all issues”); Hogue v.

Wilson, 51 A.D.2d 424 (4th Dept. 1976) (“Absent any error found in the record related to

the issue of liability which taints the verdict on damages or any other circumstances

which results in an impermissible compromise verdict, a retrial restricted solely to the

issue of damages is proper.”); cf. Roseingrave v. Massapequa Gen. Hosp., 298 A.D.2d

377 (2d Dept. 2002) (jury’s determination that patient was not entitled to damages for

past medical expenses or lost earnings was inconsistent with finding that surgeon was

liable for removal of intestine, and jury’s award for future past and future pain and

suffering could be remedied by new trial on damage only).



d. Quotient Verdicts

A quotient verdict is one where the jurors, in essence, pre-agree to deliberate

separately and then average their individual assessments of damages into a joint figure.

This pre-agreement is impermissible because jurors are supposed to deliberate as a

collective group.

It is unlikely that counsel will identify a quotient verdict before the jury is

discharged. Typically, a quotient verdict is uncovered after thorough examination of a

verdict worksheet and after conversation with the panel, followed by the submission of a

juror affidavit.

Counsel must understand that the only thing that makes a quotient verdict

impermissible is the pre-agreement between the jurors to be bound by the quotient.

Should jurors, instead, simply average their respective thoughts on damage, or (2) pre-

agree to a quotient verdict but, after arriving at the quotient figure, they deliberate

further on that figure and adopt it, the verdict is not improper. See, e.g., Micozzi v.

Glowacki, 178 A.D.2d 585 (2d Dept. 1991) (error to set aside verdict because “[i]n the

absence of . . . an advance agreement to abide by the average of the jurors’

percentages, a verdict based upon the average judgment of all the jurors is not illegal”);

Peters v. Newman, 115 A.D.2d 816, 817 (3d Dept. 1985) (despite jury foreman’s

statement that the damage figures determined by each juror were added and then

divided by six to decide the award, the jurors “did not dispense with collective

discussion, deliberation and reasoning” because they “collectively discussed the

resulting figures after the computations and recomputed the awards if they did not agree

upon the sums arrived at. Thus, they did not render an improper quotient verdict.”).



V. CHALLENGING THE VERDICT IN POST-TRIAL MOTIONS A. Generally

Post-trial motion practice centers on a search of the trial record to identify

courtroom errors, (mis)conduct or decisions that may have prompted a verdict that was

against the weight of the evidence or should be overturned in the interest of justice.

Every conversation about post-trial motion practice begins with a review of CPLR

4404 which provides:

(a) Motion after trial where jury required. After a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree after being kept together for as long as is deemed reasonable by the court. (b) Motion after trial where jury not required. After a trial not triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside its decision or any judgment entered thereon. It may make new findings of fact or conclusions of law, with or without taking additional testimony, render a new decision and direct entry of judgment, or it may order a new trial of a cause of action or separable issue.

Once the jury is discharged, counsel may move orally for judgment as a matter of

law and/or for a new trial without waiving the right to make a motion in writing under

CPLR 4404. An oral motion is not a condition precedent to a written motion and, quite

frankly, is a course often abandoned because courts are reluctant to grant meaningful

relief without written motion papers.



A note of caution where an oral motion is made and, in response, the Court

directs counsel to submit written motion papers. If counsel does not object to the

Court’s failure to rule on the oral motion and written motion papers do not timely follow,

the oral application to set aside the verdict is abandoned. See, e.g., Plantation House &

Garden Products, Inc. v. R-Three Investors, 285 A.D.2d 539 (2d Dept. 2001) (affirming

judgment where counsel, after making oral motion, failed to submit written motion within

10 days as directed); Acovangelo v. Brundage, 271 A.D.2d 885, 886 (3d Dept. 2000)

(“[f]ollowing plaintiff’s oral motion to set aside the verdict, plaintiff agreed as suggested

by Supreme Court to submit papers on the motion within 15 days” and, in the absence

of submissions or an objection “to Supreme Court’s failure to rule on the oral motion at

the time it was made, we conclude that plaintiff abandoned the motion and therefore, no

appeal lies, as – in effect – no motion was made which would result in an appealable

order”).

Whether oral and/or written, a post-trial motion must be made to the Judge who

presided over the trial. See N.Y.C.P.L.R. 4405.18 Logically, the trial judge is the

recipient of the post-trial motion because, having presided over the trial, she is in the

best position to evaluate any errors. See Micallef v. Miehle Co., 39 N.Y.2d 376, 381

(1976) (“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 18 See generally Judiciary Law section 21 which provides:

A judge other than a judge of the court of appeals, or of the appellate division of the supreme court, shall not decide or take part in the decision of a question, which was argued orally in the court, when he was not present and sitting therein as a judge.



decide whether substantial justice has been done, whether it is likely that the verdict has

been affected and must look to his own common sense, experience and sense of

fairness rather than to precedents in arriving at a decision.”) (internal quotations and

citations omitted).

Where the trial judge becomes unavailable (e.g., incapacity, death, ascension to

the appellate bench) a successor judge may be an option for resolution of post-trial

motions. See, e.g., Plunkett v. Emergency Medical Service of New York City, 234

A.D.2d 162 (1st Dept. 1996) (successor judge could consider motion to set aside jury

verdict because purely legal questions were involved and prior discussion had been

recorded in minutes); Bonasera v. Town of Islip, 19 A.D.3d 525, (2d Dept. 2005)

(plaintiff’s motion to set aside jury verdict on liability for defendant and judgment as a

matter of law could be heard by judge other than trial judge, after trial judge was

designated an Appellate Division justice, “since perspective of trial judge was not

essential to proper evaluation of plaintiff’s post-trial motion, which was not argued orally

in court”).

B. Timing

A CPLR 4404 motion must be made in a jury case within 15 days after the

rendition of the verdict or the discharge of the jury. In a judge-tried case, the motion

must be made within 15 days from when the judge’s decision is filed. See Bernstein v.

Swidunovich, 44 Misc.2d 728 (Sup. Ct., N.Y. Cty., Dec. 15, 1964) (15 days runs from

date of filing not date of decision). In a non-jury trial, the court can set aside its own

decision on its own initiative even after 15 days.



The 15 day deadline may be extended by the Court “upon such terms as may be

just and upon good cause shown, whether the application for extension is made before

or after the expiration of the time fixed.”19 N.Y.C.P.L.R. 2004; see Mora v. Cassino, 196

Misc.2d 403 (N.Y. City Civ. Ct., Feb. 19, 2003) (exercising discretion to hear CPLR

4404 motion in the absence of good cause where delay was respondent’s fault because

it was “only a matter of days beyond the 15 days provided in CPLR 4405” and there was

strong public policy for the motion to be heard).

For a discussion of how vicarious liability can save the day, see Salisbury v.

Christian, 68 A.D.3d 1164 (4th Dept. 2009). The plaintiffs in Salisbury filed suit against

a negligent driver and the bank owner/lessor of the car. At trial, the driver and bank had

separate counsel. The jury awarded more than $3,200,000 in damages. After trial,

counsel for the driver filed a timely CPLR 4404 motion. The bank did not. Instead, it

filed a “cross-motion.” The Fourth Department excused the untimely CPLR 4404 motion

because “the liability of [the bank] is vicarious and this is inseparable from the liability of

[the driver].”

19 Where a party asks for direction with respect to the submission of a written CPLR 4404 motion, and the inquiry goes “unheeded by the court,” a motion made two months later is not untimely. See Brown v. Two Exch. Plaza Partners, 146 A.D.2d 129 (1st Dept. 1989).



C. Form

There shall be only one written request for post-trial relief and it must be

comprehensive. Pursuant to N.Y.C.P.L.R. 4406:

In addition to motions made orally immediately after decision, verdict or discharge of the jury, there shall be only one motion under this article with respect to any decision by a court, or to a verdict on issues triable of right by a jury; and each part shall raise by the motion or by demand under rule 2215 every ground for post-trial relief available to him.

A CPLR 4404 motion should be identified as such. An untimely CPLR 4404

should not be camouflaged and cast as a motion for reargument. See, e.g., Brozozowy

v. Elrac, Inc., 39 A.D.3d 451 (2d Dept. 2007) (denying as untimely plaintiff’s motion

which “dominated as one for leave to renew and reargue but which was, in effect,

pursuant to CPLR 4404(a) to set aside the jury verdicts and for a new trial”); Casey v.

Slattery, 213 A.D.2d 890 (3d Dept. 1995) (trial court “should not have accepted

plaintiff’s characterization of his motion as one for reargument since it was an obvious

artifice designed to evade the time limitation of CPLR 4405”).

D. Grounds

a. Contrary to Law or Against Weight of Evidence

Whether to set aside a verdict as contrary to law or against the weight of the

evidence is a fact specific inquiry that lies within the sound discretion of the trial court.

Absent an “abuse of that discretion,” a trial judge’s decision in this regard will not be

disturbed on appeal. See Osborne v. Schoenborn, 216 A.D.2d 810 (3d Dept. 1995).



For purposes of these materials, the standard for review is that a “jury verdict

should not be set aside as against the weight of the evidence unless the jury could not

have reached the verdict by any fair interpretation of the evidence.” Abayev v. Jewelry

Mfg. Corp., 44 A.D.3d 693 (2d. Dept. 2007); see, e.g., Castellano v. New York City

Trans. Auth., 38 A.D.3d 822 (2d Dept. 2007) (no basis to find for plaintiff as only proof

was that plaintiff was struck by train – which did not prove defendant’s negligence);

Gomez v. 192 East 151st Street Associates, L.P., 26 A.D.3d 276 (1st Dept. 2006) (no

basis to divide liability 80/20 between city and out-of-possession landlord because there

was no evidence at trial that landlord had notice of defect and consented to be

responsible for repairs).

In Cohen v. Hallmark Cards, Inc., the Court of Appeals held:

[T]he question whether a verdict is against the weight of the evidence involves what is in large part a discretionary balancing of many factors. For a Court to conclude as a matter of law that a jury verdict is not supported by sufficient evidence, however, requires a harsher a more basic assessment of the jury verdict . . . . [I]n any case in which it can be said that the evidence is such that it would not be utterly irrational for a jury to reach the result it had determined upon, and thus a valid question of fact does exist, the Court may not conclude that the verdict is as a matter of law not supported by the evidence.

45 N.Y.2d 493 (1978); see also Lolik v. Big V Supermarkets, Inc., 86 N.Y.2d 744 (1995).



b. Interests of Justice

i. Voir Dire

Unrealistic limitations placed on voir dire may result in a new trial.20 See, e.g.,

Zgrodek v. McInerney, 61 A.D.3d 1106 (3d Dept. 2009) (set aside verdict because 15

minutes for each round of jury selection “under the circumstances of this case was

unreasonably short”).

ii. Continuance

Pursuant to N.Y.C.P.L.R. 4402, “[a]t any time during the trial, the court, on motion

of any party, may order a continuance or a new trial in the interest of justice on such

terms as may be just.”

To the Bar, this is better known as the “mistrial” motion. It is the vehicle to abort

a trial and start over with a new jury, or to postpone the trial into the future with the

same jury. Whether to grant a continuance is a matter of discretion of the trial court.

See, e.g., Taveras v. Martin, 54 A.D.3d 667 (2d Dept. 2008). A trial court abuses its

discretion by denying a continuance during trial “where application complies with every

requirement of law and is not made merely for delay, evidence sought is material, and

need for continuance does not result from failure to exercise due diligence.” In re Tripp,

101 A.D.3d 1137 (2d Dept. 2012) (declining to grant continuance after considering

“merit or lack of merit of action,” “extent of delay,” the number of adjournments granted,

the length of the proceeding, and “intent to deliberately default or abandon the action”);

20 See generally IMPLEMENTING NEW YORK'S CIVIL VOIR DIRE LAW AND RULES, at III.C., located at http://www.nycourts.gov/publications/pdfs/ImplementingVoirDire2009.pdf (“in a routine case a reasonable time period to report on the progress of voir dire is after about two or three hours of actual voir dire”).

http://www.nycourts.gov/publications/pdfs/ImplementingVoirDire2009.pdf



Guzman v. 4030 Bronx Blvd. Assoc., 54 A.D.3d 42 (1st Dept. 2008) (error for trial court

to deny plaintiff’s request for continuance to secure additional medical expert to testify

where defendant did not move until trial to preclude the plaintiff’s expert from testifying);

Canty v. McLoughlin, 16 A.D.3d 449 (2d Dept. 2005) (where plaintiff rested at 3:30 p.m.

and defendant requested adjournment of proof to 9:30 a.m. the next morning to present

a witness, it was error for the court to deny request).

Common grounds for a 4402 motion include: (1) witness unavailability, (2) need

for additional evidence,21 (3) illness, (4) surprise, (5) law firm failure,22 and (6) new

counsel. If a party hopes to prevail on this motion, the party must not be guilty of

neglect. See, e.g., Waters v. Silverock Baking Corp., 172 A.D.2d 984 (3d Dept. 1991)

(trial court did not abuse discretion denying request for continuance for out-of-state

witness testimony where where defendant had made no effort to obtain witness’ return

to state and witness’ testimony could have been timely secured).

21 Counsel should expect the trial court to test the relevance of the additional evidence before determining whether to grant a continuance. See, e.g., 174 Second Equities, Corp. v. Hee Nam Bee, 57 A.D.3d 319 (1st Dept. 2008) (court properly denied eleventh-hour continuance to subpoena witnesses where counsel could not provide the court with any information about the identity of the witnesses or the relevance of their testimony); Moretta v. Davenport Express, Inc., 243 A.D.2d 547 (2d Dept. 1997); (trial court did not abuse discretion in denying plaintiff’s request for continuance in personal injury action in order to produce police officer where responded to accident as officer was not a witness to the accident, plaintiff did not claim officer conducted an investigation that would yield relevant testimony, and witness statement in officer’s report was hearsay); Michaels v. Salimonte, 121 A.D.2d 370 (2d Dept. 1986) (denying one day continuance to produce a witness because plaintiff could only speculate as to what witness’ testimony would be). 22 See, e.g., Brusco v. Davis-Klages, 302 A.D.2d 674 (3d Dept. 2003) (court properly granted continuance where plaintiff’s counsel explained that he met with clients in May of 2002, went on vacation, and failed to follow-up after vacation to learn before the August trial that the treating physician would only appear for videotaped testimony, and the next available date was in October).



Postponement for days or even weeks may be appropriate under the

circumstances. See, e.g., Newmark v. Animal Emergency Clinic of Hudson Val., 38

A.D.3d 1110 (3d Dept. 2007) (after plaintiff was granted one day continuance to

produce and expert, and failed to produce the witness, it was not an error for trial court

to deny request for further continuance even though expected testimony was material

and necessary because counsel could not outline steps she took to secure the witness);

Buscaglia v. Ruh, 140 A.D.2d 996 (4th Dept. 1988) (four day continuance to allow

defendant to produce an out-of-state witness to testify about attendance at a social

event was acceptable); Bruce v. Hospital for Special Surgery, 34 A.D.2d 963 (2d Dept.

1970) (error to refuse defendant’s request for three week adjournment so that crucial

medical witness could testify “since the explanation for his absence was plausible”).

iii. Excessive/Inadequate Verdict

There are, literally, thousands of cases that speak to jury’s award of too little or

too much compensation. The analysis is fact specific. For purposes of these materials,

the standard for appellate review is whether the award “deviates materially from what

would be reasonable compensation.” N.Y.C.P.L.R. 5501(c).

iv. Mistakes and Misconduct

Courtroom conduct may give rise to a new trial in the interests of justice.

Generally, to result in a new trial the conduct must be continual, deliberate, outrageous,

and/or blantly improper.



1. Counsel

Lawyer (mis)conduct is a common ground for a new trial. While trial and

appellate courts are patient – sometimes to a fault – there is a limit.

A deliberate effort to divert the jurors’ and court’s attention from the issues to be

tried may result in a new trial. See, e.g., Reynolds v. Burghezi, 227 A.D.2d 941 (4th

Dept. 1996) (remarks required new trial because “they did not consist of an isolated

remark during questioning or summation, but a seemingly continual and deliberate effort

to divert the jurors' and the court's attention from the issues to be determined”).

It is well-settled that counsel should have no contact with jurors during trial.

Contact likely means a new trial. See, e.g., Heller v. Provenzano, 257 A.D.2d 378 (1st

Dept. 1999) (new trial necessary in interests of justice, even though there was no

request for mistrial, because plaintiff’s attorney entered jury room during trial, spoke with

prospective Hispanic jurors in Spanish, and told the jury that his wife was Hispanic).

Counsel should follow court orders and rulings. Repeated and flagrant disregard

of court directives likely means a new trial. See, e.g., Stewart v. Olean Med. Group,

P.C., 17 A.D.3d 1094 (4th Dept. 2005) (new trial necessary where counsel for plaintiff’s

estate persistently questioned witnesses concerning evidence that the trial court

previously deemed inadmissible, and improperly referred to that evidence in

summation); Lidge v. Niagara Falls Memorial Medical Center, 17 A.D.3d 1033 (4th

Dept. 2005); (two “fleeting references to precluded evidence” did not create a

substantial possibility of injustice); Doody v. Gottshall, 67 A.D.3d 1347 (4th Dept. 2009)

(new trial were defense attorney repeatedly expressed his personal opinion regarding



cause and severity of plaintiff’s injury, and made arguments in summation not supported

by the evidence); Winiarski v. Harris, 78 A.D.3d 1556 (4th Dept. 2010) (improper to

permit plaintiff to read into evidence a passage from an unidentified medical treatise and

to refer to then stricken testimony in closings, but the errors were “not so flagrant or

excessive that a new trial is warranted”); Schaffer v. Kurpis, 177 A.D.2d 379 (1st Dept.

1991) (new trial where defense counsel interjected plaintiff’s alleged cocaine use

without good faith basis, willfully failed to follow court rulings, and had repeated

exchanges with the bench that were “acrimonious”).

Counsel should be cautious about commenting on the quality of the proof –

especially where the quality and/or quantity of proof has something to so with motions

made during discovery. See, e.g., DiMichel v. South Buffalo Ry. Co., 80 N.Y.2d 184

(1992) (where plaintiff secured protective order to stop defense vocational expert’s

examination of plaintiff, and made repeated comments during trial about expert’s lack of

exam to discredit witness, new trial was necessary because it created appearance that

expert’s testimony was incomplete and unreliable).

Attorney statement to or commentary about his adversary and witnesses may

result in a new trial. See, e.g., Boyd v. Manhattan and Bronx Surface Tr. Operating

Auth., 79 A.D.3d 412 (1st Dept. 2010) (no new trial where counsel made a comment

during cross-examination that prompted her adversary to ask the court to instruct

plaintiff's counsel to “shut her mouth” as the court immediately admonished both

attorneys, specifically told defense counsel that he should refrain from using such

inappropriate language, and the commentary did not “create a climate of hostility that so

obscured the issues as to have rendered the trial unfair”); Kennedy v. Children’s Hosp.



of Buffalo, 288 A.D.2d 918 (4th Dept. 2001) (new trial where defense counsel refused to

abide by court rulings during trial, argued with the court after rulings were made,

badgered plaintiff’s attorney throughout trial including 30 objections during summation,

interrupted witnesses, and called the arguments of the plaintiff’s attorney “preposterous”

and “absolutely objectionable”); Bagailuk v. Weiss, 110 A.D.2d 284 (3d Dept. 1985)

(commentary about the absence of the defendant during trial was so he could “tailor” his

testimony was inaccurate and improper); Caraballo v. City of New York, 86 A.D.2d 580

(1st Dept. 1982) (new trial necessary due to comments made by plaintiff’s attorney in

summation, including “”this clever lawyer has been jabbing and moving around for two

weeks with illegal procedures,” “he’s a tricky lawyer,” “he is skilled, experienced, tricky,

deceptive, and that is what this is really all about, and that is what is happening here,”

“they will say anything to beat this case because, ladies and gentlemen, there’s a lot of

money involved here,” “they bring in a phony doctor for a price,” “he said yes, there will

be a bill. How much do you charge for perjury doctor,” “he brought in that poor black

man. They put him up to coming here. They used him”); Brooks v. Judlau Contracting,

Inc., 39 A.D.3d 447 (2d Dept. 2007) (new trial needed in the face of repeated

denigration of ironworker’s witnesses and their counsel).

Where counsel inserts herself into the case by commenting on the credibility of

the witnesses and/or the proof, or becomes the proof, a new trial may follow. See, e.g.,

Venezuela v. City of New York, 59 A.D.3d 40 (1st Dept. 2008) (new trial necessary

where counsel acted as unsworn translator and spoke about his personal observations

of softball field where plaintiff was injured); O’Neil v. Klass, 36 A.D.3d 677 (2d Dept.

2007) (new trial necessary where defense counsel repeatedly characterized a witness’s



responses as “lies,” accused the witness of “deliberately misleading the jury” and called

the witness an “evasive person” as well as a “professional witness”); Minichiello v.

Supper Club, 296 A.D.2d 350 (1st Dept. 2002) (new trial necessary where plaintiff’s

attorney referred to a German national witness as someone who exhibited an “attitude

of hated” and made forced analogies to “Nazi Germany and the Holocaust,” as the

comments were not inadvertent or harmless in the aggregate);

The introduction of extensive irrelevant and highly prejudicial evidence at trial

may lead to a mistrial. See Smolinski v. Smolinski, 78 A.D.3d 1642 (4th Dept. 2010) (in

case against Ford Credit for personal injuries plaintiff sustained in a car leased from the

defendant, it was improper for plaintiff’s attorney to elicit 70 pages of trial testimony

about the plaintiff’s life before the injury which, when joined with comments during

summation that the defendant was engaged in a cover-up, and it witnesses had testified

falsely for compensation, required a new trial).

2. Court

It is well-known that the trial judge has authority to regulate courtroom

proceedings. N.Y.C.P.L.R. 4011 provides:

The court may determine the sequence in which the issues shall be tried and otherwise regulate the conduct of the trial in order to achieve a speedy and unprejudiced disposition of the matters at issue in a setting of proper decorum.

Consistent with their inherent and statutory authority, some courts take an “active role”

in the examination of witnesses. This is proper provided the court is even-handed and

impartial.



Occasionally, a trial judge may overstep his or her authority through exchanges

with counsel, witnesses and/or jurors. Where this happens and the jury is improperly

influenced, the interests of justice may require a new trial. See, e.g., Snediker v.

Orange Cty., 58 N.Y.2d 647 (1982) (no substantial prejudice necessary for new trial

despite an “oral communication from the juror to the trial judge, and [a] communication

between the juror and the clerk regarding the juror’s wife’s desire that the juror

telephone her” which should have been conveyed to counsel); Lorenzo v. Mass, Inc., 31

A.D.3d 616 (2d Dept. 2006) (reprimand of dense counsel for “adamant and repeated

refusal to adhere to directions by the trial court” did not demonstrate bias warranting

reversal of verdict for plaintiff); Schaffer v. Kurpis, 177 A.D.2d 379, 380 (1st Dept. 1991)

(reversible error where “fencing match indulged in by the court with plaintiff’s expert

witness” as well as “unwarranted interventions repeated with virtually every other

witness” could not have “failed to impress upon the jury the court’s prevailing skepticism

as to the merits of plaintiff’s case”); Brown v. Moodie, 116 A.D.2d 980 (4th Dept. 1986)

(improper for court to communicate with juror in the absence of the parties because

“helping the juror to answer the questions on the verdict sheet and in actually doing

arithmetic, the court may have inadvertently placed its imprimatur on certain possible

factual determinations before the jurors had reached a consensus”); Kamen Soap

Prods. Co. v. Prusasky & Prusansky, 11 A.D.2d 676 (1st Dept. 1960) (judge’s lengthy

cross-examination of plaintiffs’ witnesses, constant interruptions of answers of the

witnesses, and unnecessary criticisms of plaintiffs’ counsel – amounting to 500 pages of

a 2500 page transcript – deprived the plaintiff a fair trial).



The court may examine witnesses. Where the court elects to examine a witness,

the questions may not suggest the court’s own views. See, e.g., Kelly v. Metropolitan

Ins. and Annuity Co., 82 A.D.3d 16 (1st Dept. 2011) (expert’s “sigh” prompted court to

conduct an improper inquiry that “left the jurors with the distinct and unmistakable

impression that the court disapproved of plaintiffs’ expert and credited none of her

testimony”); Kavanaugh v. Nussbaum, 129 A.D.2d 559, (2d Dept. 1987) (court’s

infrequent examining of witnesses for limited duration was acceptable because it was

not done in a way as to suggest the court’s own views), aff’d as modified, 71 N.Y.2d

(1988).

Whether the court has gone too far during questioning will depend upon: (1) the

manner in which the questions were phrased, (2) the number of questions asked, (3)

whether questioning was tantamount to cross-examination, (4) whether questioning led

to rehabilitation of the witness, and (5) whether the court impaired counsel’s

examination of the witness and/or role at trial. See, e.g., Sefaradi v. Assil, 175 A.D.2d

281 (2d Dept. 1991) (new trial necessary where court took over trial, engaged in

extensive colloquy with attorney, permitted only three questions of the plaintiff and two

of the defendant, asked three of the five questions permitted, and precluded testimony

from witnesses present and prepared to testify); Gerichten v. Ruiz, 80 A.D.2d 578 (2d

Dept. 1981) (trial court’s repeated interruptions, cross-examination and questions

intended to rehabilitate required new trial); Whitehead v. Mutual Life Ins. Co. of New

York, 264 A.D. 647 (3d Dept. 1942) (trial court denied plaintiff fair trial by repeated

interruption of plaintiff’s counsel during examination of plaintiff’s medical witness and by



cross-examination of the witness at length, especially since the defendant was

represented by experienced counsel who needed no assistance from the bench).

The Court may scold or admonish counsel where the conduct of counsel invites

reprimand. See, e.g., Hoey v. Rawlings, 51 A.D.3d 868 (2d Dept. 2008) (court

reprimand of attorney and threat of contempt for behavior during medical malpractice

trail did not exhibit bias requiring new trial where counsel was rude, offensive and

ignored the court’s admonition to desist); Genco v. Millard Fillmore Suburban Hosp.,

275 A.D.2d 920 (4th Dept. 2000) (no new trial where court expressed personal opinions

about hospital’s responsibility for presence of laparotomy pad during colloquies with

counsel in the presence of jury because comments were in response to defense

counsel’s improper attempts to introduce evidence concerning defense that were not

pleaded); Alonso v. Powers, 220 A.D.2d 311 (1st Dept. 1995) (when the trial judge

became impatient with bickering between counsel and humorously on two occasions

threatened to lock them in a closet filled with weapons so they could settle their

disputes, and where the comments were addressed to counsel and were not objected to

by either side, no prejudice resulted).23

23 What if the trial judge sustains unmade objections? See, e.g., Heilbrunn v. Town of Woodstock, 50 A.D.3d 1377 (3d Dept. 2008) (no bias requiring new trial where court sustained unmade objections, questioned the qualifications of one of plaintiff’s experts in open court with the jury present, and examined witnesses).



The statistical distribution of trial rulings, when combined with other unusual

conduct, may give rise to a new trial. See DeCrescenzo v. Gonzalez, 46 A.D.3d 607

(2d Dept. 2007). In DeCrescenzo, a new trial was ordered where the trial judge:

demonstrated a propensity to admonish the defense counsel at a substantially more frequent rate than she did the plaintiffs' counsel, often admonishing the defense counsel for actions about which she failed to comment when committed by the plaintiffs' counsel. She gave the plaintiffs' counsel significantly more leeway in cross-examining witnesses and in making extraneous comments than she gave the defense counsel. During the trial and in front of the jury, she gave a gift to the infant plaintiff. Later, also during trial, she gave each jury member a gift when the court recessed for a holiday break. Under the circumstances, the defendants were denied a fair trial by virtue of the cumulative effect of the improper conduct of the trial court, and as a result, the jury could not have considered the issues at trial in a fair, calm, and unprejudiced manner

3. Party

The parties should not fraternize with jurors during trial. See Cambell v. Towber,

46 Misc.2d 891 (while defendant was entitled to a new trial because the plaintiff allowed

a juror to walk with her for eight minutes to her to her home and to “console her after

they had accidentally met,” during which juror told plaintiff everything would be “OK,”

defendant’s attorney waived right to new trial following verdict for plaintiff because he

learned about misconduct either through conversation with the plaintiff or by personal

observation and chose to withhold that knowledge until she was certain of the outcome).



4. Juror

“It is not every irregularity in the conduct of jurors that requires a new trial.”

Wiener v. Davidson, 61 A.D.2d 1030 (2d Dept. 1978), quoting People v. Dunbar Contr.

Co., 215 N.Y. 416 (1915). However, a new trial may be warranted in the interests of

justice if there has been “improper influence” or there is “evidence that substantial

justice has not been done as a result of juror misconduct.” Gabrelle G. v. White Plains

City School Dist., 106 A.D.3d 776 (2d Dept. 2013) (no new trial where only evidence of

juror misconduct was post mortem affidavit that a juror had commenced deliberations

with alternate jurors over lunch); LaChapelle v. McLoughlin, 68 A.D.3d 824 (2d Dept.

2009) (no new trial following defense verdict where juror asked plaintiff’s attorney to

give her car a “jump,” lawyer said he could not talk to the juror and informed court officer

and, after questioning from the court, the juror stated that the contact would ne effect on

her ability to be fair and impartial).

A prospective juror is “duty bound to truthfully answer all questions posed during

voir dire . . . [and] is obligated to volunteer information which he or she has reason to

believe would render him unacceptable to the litigants.” Matter of Buchanan, 245

A.D.2d 642, 646 (3d Dept. 1997). Where a juror conceals facts, bias or prejudice, a

party may be entitled to a new trial. See, e.g., Remillard v. Louis Williams, Inc., 59

A.D.3d 764 (3d Dept. 2009) (insufficient evidence that juror failed to truthfully answer

voir dire questions about her relationship with the plaintiff in order to establish

misconduct necessary to grant new trial). The party seeking the new trial bears the

“burden of demonstrating that the juror deliberately and willfully failed to disclose . . . [a]

fact.” Remillard, 59 A.D.3d at 766.



It is well-settled that it is not proper for a juror to travel to the scene of an

accident or incident during the trial. See, e.g., Alford v. Sventek, 53 N.Y.2d 743 (1981)

(juror went to the scene).

Jurors should not refer to materials outside of the record to inform their

deliberations. Depending upon the reference material used, and the purpose for the

inquiry, this misconduct may – or may not – result in a new trial. See, e.g., Nicolla v.

Fasulo, 161 A.D.2d 966 (3d Dept. 1990) (juror’s review of physician desk reference

(PDR) did not necessitate new trial); Sansone v. Lake, 124 A.D.2d 990 (4th Dept. 1986)

(no new trial where juror looked up “proximate cause” in dictionary); Maslinski v.

Brunswick Hospital, 118 A.D.2d 834 (2d Dept. 1986) (new trial necessary where juror

looked up “malpractice” in several medical dictionaries).

Jurors are free to like one party more than the other for a constellation of

reasons, provided their favoritism does not rise to the level of bias and impede impartial

deliberations. See, e.g., Capital Medical Systems v. Fuji Medical System, 270 A.D.2d

728 (3d Dept. 2000) (no new trial where juror expressed during trial that she wanted to

work for the defendant after trial and spoke with defendant about employment after trial

ended); Beemer v. Town of Portville, 2003 WL 21402040 (Sup. Ct. Cattaraugus Cty.,

May 29, 2003) (no new trial where juror gave plaintiff and other jurors inexpensive gifts

after trial, as well as card to court and deputies).



The Court must provide counsel an opportunity to make a record about juror

misconduct for appellate review. See Hutchinson v. Clare Rose, 40 A.D.3d 702, 704

(2d Dept. 2007) (error for trial judge to discuss matters going to the heart of the

deliberative process with a juror without making a record, and for denying plaintiff’s

request to make a record when it became clear that juror had breached instructions;

errors “irreparably impaired the ability of counsel to make proper post-judgment

application to set aside the verdict due to juror misconduct”).

5. Perjury

A new trial may be necessary where there is clear evidence that a verdict was

obtained by false or perjured testimony. However, there must be proof beyond mere

conflicting testimony. See, e.g., Pizzi v. Anzalone, 261 A.D.2d 374 (2d Dept. 1999)

(new trial proper where defendant admitted after trial that he testified untruthfully as to

factual matters material to the verdict); Pastore v. Boone, 127 A.D.2d 872 (3d Dept.

1987) (no basis for new trial for perjury where plaintiff and defendants presented

conflicting versions of the facts); Solomon v. Solomon, 27 A.D.3d 988 (3d Dept. 2006)

(while “judgment may be vacated if it is established that it was predicated upon

fraudulent testimony which affected the outcome of the trial,” insufficient proof in record

for new trial); cf. Trapp v. American Trading and Production Corp., 66 A.D.2d 515 (1st

Dept. 1979) (jury verdict in plaintiff's favor was properly vacated where one of the

plaintiff's key witnesses was an impostor; the perjury so infected the verdict as to

require that the verdict be set aside in the interest of justice).



6. Surprise During Trial

Unfair surprise at trial is a basis for a new trial in the interests of justice –

provided the surprise is not due to a lack of diligence on the part of the party seeking

relief. See, e.g., Hannon v. Dunkirk, 167 A.D.2d 834 (4th Dept. 1990) (error to deny

new trial due to surprise of newly discovered evidence where plaintiff could not have

anticipated the use of time cards at trial that were withheld by opponent); Xavier v.

Grunberg, 67 A.D.2d 632 (1st Dept. 1979) (where plaintiff knew of witness with

knowledge four years before trial, it was an error to permit plaintiff to modify theory

during trial from constructive to actual notice via motion to amend the pleadings to

confirm to the proof, as this was unfair surprise requiring new trial); cf. Andree v.

Winthrop University Hosp., 277 A.D.2d 265, 266 (2d Dept. 2000) (following jury verdict

for plaintiff in medical malpractice action, no new trial based upon the surprise testimony

offered by the defendant’s expert witness who “testified as she did due to his own error,

which could have been anticipated in the exercise of due diligence”).



APPENDIX



SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF HERKIMER Plaintiff -against- Defendant

GENERAL VERDICT WORKSHEET Index No.:

Select one of the following two options: ______ We find in favor of plaintiff and against defendant and award damages to plaintiff in the amount of $__________________________. ______ We find in favor of defendant and against plaintiff. Singed: ________________________________ ________________________________

________________________________ ________________________________ ________________________________ ________________________________ Dissenting Juror, If Any



SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF HERKIMER Plaintiff -against- Defendants.

GENERAL VERDICT WORKSHEET (INCLUDING INTERROGATORIES) Index No.:

Select one of the following two options: ______ We find in favor of plaintiff and against the defendants and award damages to plaintiff in the amount of $__________________________. ______ We find in favor of defendants and against plaintiff.

INTERROGATORIES 1. Did the plaintiff prove by a preponderance of the evidence that Jim Jones operated the

tractor in a negligent manner? ______ Yes _____ No 2. Did the plaintiff prove by a preponderance of the evidence that Jim Jones was working

for Farm Supply when the plaintiff was injured? ______ Yes _____ No 3. Did the plaintiff prove by a preponderance of the evidence that the tractor was owned by

Smith Equipment when the plaintiff was injured? ______ Yes _____ No 4. As between the Jim Jones, Farm Supply and Smith Equipment, how do you divide responsibility for the plaintiff’s injuries (total must be 100%): ______ Jim Jones _____ Farm Supply _____ Smith Equipment



Singed: ________________________________ ________________________________

________________________________ ________________________________ ________________________________ ________________________________ Dissenting Juror, If Any



STATE OF NEW YORK SUPREME COURT COUNTY OF ONONDAGA MICHAEL J. BROWN, Individually and as Administrator of the Estate of CYNTHIA H. SHUTE BROWN, Plaintiff, -against- MICHAEL S. TONG, M.D., individually and as an officer, agent and/or employee of NORTH MEDICAL FAMILY PHYSICIANS, P.C.; NORTH MEDICAL FAMILY PHYSICIANS, P.C., by and through its officers, agents and/or employees, Defendants.

PLAINTIFF’S SPECIAL VERDICT WORKSHEET Index No.: 2008-9830 RJI No.: 33-09-3232 Hon. Brian F. DeJoseph, J.S.C.

Instructions:

1. Five (5) jurors must agree on the answer to a question. However, the same five (5) jurors do not need to agree on the answer to each question.

2. If a juror disagrees with the answer of the other five (5) jurors, the juror who disagrees must sign on the line indicated below the answer to the question as “Dissenting Juror.”

3. Answer each question in the order in which it is presented, and follow the further instructions after the answer is given.

4. At the end of this verdict sheet each juror must sign to certify that:

[a] the verdict sheet is accurate;

[b] at least five jurors voted for the response provided;

[c] all jurors participated in the deliberations.

5. Please proceed to the questions.



QUESTION 1:

Was the defendant, MICHAEL S. TONG, M.D., negligent with respect to his care and treatment of Cynthia H. Shute Brown?

YES NO

Only five jurors must agree on the answer to this question.

Dissenting Juror, If any

If the answer is “Yes” to Question 1, please proceed to Question 2.

If the answer is “No” to Question 1, please proceed to Question 3.



QUESTION 2:

Was the negligence of the defendant, MICHAEL S. TONG, M.D., a substantial factor in causing Cynthia H. Shute Brown’s injuries and death?

YES NO



Proceed to Question 3.



QUESTION 3:

Was the defendant, NORTH MEDICAL FAMILY PHYSICIANS, P.C., negligent with respect to its care and treatment of Cynthia H. Shute Brown?

YES NO



If the answer is “Yes” to Question 3, please proceed to Question 4.

If the answer is “No” to Questions 1 and 3, please report to the Court.



QUESTION 4:

Was the negligence of the defendant, NORTH MEDICAL FAMILY PHYSICIANS, P.C., a substantial factor in causing Cynthia H. Shute Brown’s injuries and death?

YES NO



Proceed to Question 5.



QUESTION 5:

State the percentage of fault for each of the defendants.

Michael S. Tong, M.D. %

North Medical Family Physicians, P.C. %

(must total 100%)

Please proceed to Question 6.



QUESTION 6:

State the amount awarded to the Estate of Cynthia H. Shute Brown for her pain and suffering on or before her death on December 25, 2006.

$

If you decide not to make an award, please write the word “none.” Only five jurors must agree on the answer to this question.


Regardless of your answer to Question 6, please proceed to Question 7.



QUESTION 7:

A. Set forth the amount of pecuniary loss sustained to date by Michael Brown as a result of the death of his wife, Cynthia H. Shute Brown, on December 25, 2006.

Total Amount

Michael Brown, Husband $ ___________________


B. Set forth the amount of future pecuniary loss sustained by Michael Brown as a result of the death of his wife, Cynthia H. Shute Brown, on December 25, 2006.

Total Amount

Michael Brown, Husband $ ___________________




C. Set forth the number of years Michael Brown will sustain pecuniary loss.

Total Years

Michael Brown, Husband ___________________




SIGNATURE AND CERTIFICATION PAGE

We, the undersigned jurors, certify that:

(1) this verdict sheet is accurate; and

(2) at least five jurors votes for the responses provided; and

(3) all jurors participated in the deliberations.

ALL SIX JURORS MUST SIGN BELOW:

PLEASE REPORT YOUR VERDICT.



The Author Michael A. Bottar is a member of Bottar Leone, PLLC, a Syracuse-based law firm that has for more than three decades represented only injured patients, motorists, workers and consumers throughout the State of New York. Michael’s trial practice centers on medical malpractice and complex injury claims arising out of hypoxic, ischemic or traumatic brain/nerve injuries and misdiagnoses, as well as workplace injuries, governmental negligence, common carrier accidents (e.g., buses, trucks, trains), and defective medical devices. Michael is a graduate of Colgate University and is a summa cum laude graduate of Syracuse University College of Law where he is an adjunct professor, author of the "Civil Practice" chapter of the Syracuse Law Review’s Survey on New York, and serves on its Board of Advisors – a small panel of alumni charged with strategic advancement of the law school's mission. Michael is a member of the Board of Directors of the New York State Academy of Trial Lawyers, and sits on its judicial screening committee. In connection with the Academy and other bar associations, he lectures annually throughout New York State on medical malpractice, personal injury and trial-related topics. Michael is also a member of the board of directors of the Central New York Women’s Bar Association and sits on its judicial screening committee. Michael is a member of the Board of Directors of the Onondaga Historical Association, and is a past member of the advisory boards for the Syracuse University Law Alumni Association, Contact Community Services, and the CNY Arthritis Foundation. In 2005, Mr. Bottar was recognized by Human Rights First – a nonprofit, nonpartisan international human rights organization – for his role in securing political asylum for a Sierra Leonian refugee. Michael is a past member and executive editor of the Syracuse Law Review, which published his note titled "Robbing Peter To Pay Paul: Medicaid Liens, Supplemental Needs Trusts and Personal Injury Recoveries on Behalf of Infants In New York State Following the Gold Decision." He is also a past member of the Syracuse University College of Law Moot Court Honor Society, and was inducted into the Order of the Coif, the Order of Barristers, and the Justinian Honorary Law Society. Michael has been named to The National Trial Lawyers: Top 40 Under 40 and to The National Trial Lawyers: Top 100, has been selected for inclusion in New York Super Lawyers (Upstate), and is a member of the Multi-Million Dollar Advocates Forum. He began his legal career as a litigation associate with White & Case, LLP, in New York, New York, and Bond, Schoeneck & King, PLLC, in Syracuse, New York.

http://law.syr.edu/deans-faculty-staff/profile.aspx?fac=253

http://www.scribd.com/doc/106486058/Michael-A-Bottar-Robbing-Peter-To-Pay-Paul-Medicaid-Liens-Supplemental-Needs-Trusts-and-Personal-Injury-Recoveries-In-New-York-State-Following-The#fullscreen



http://thenationaltriallawyers.org/profile-view/Michael/Bottar/5894/



http://www.bottarleone.com/lawyer-attorney-1393731.html

http://www.bottarleone.com/lawyer-attorney-1393731.html

michael a. bottar, post-trial practice in new york state courts: procedure and pitfalls

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