Duffy v. Vogel

Full title: DUFFY, ELEANOR, Plaintiff, v. VOGEL, JAMES M., DR., ET AL., Defendant

Court: Supreme Court of the State of New York, New York County

Date published: Feb 27, 2007

2007 N.Y. Slip Op. 34280 (N.Y. Sup. Ct. 2007)

Opinion

0120794/2002.

February 27, 2007.

DECISION/ORDER

DONNA M. MILLS, J.Page 2

Pursuant to CPLR § 4404, plaintiff moves for an Order setting aside the verdict of the jury as inconsistent, against the weight of the evidence, and the failure of the court to poll the jury, in addition to various evidentiary trial rulings. Defendants' oppose the motion.

BACKGROUND

This medical malpractice action was tried before this court from October 26, 2006 to November 17, 2006. Plaintiff initiated this action against two defendants, Dr. James Vogel and Dr. Allan Jacobs. The verdict sheet also included non parties, Dr. Martin Feuer and Dr. Arie Liebeskind as to their possible culpability. The jury unanimously found that the named defendants were not liable for plaintiff's injuries. The verdict sheet clearly instructed the jury to not continue to the non party Dr.'s if they found the named defendants not liable. However, the jury continued to answer the questions on the verdict sheet in disregard of the instructions, and found the non-party Dr.'s culpable. The entire verdict was read in open court, and counsel for plaintiff immediately asked that the jury be polled. This court denied counsel's application which now forms the basis for this motion to set aside the verdict.

APPLICABLE LAW AND DISCUSSION

It has been established that the parties have an absolute right to have the jury polled, and the refusal to do so is error (see Muth v J T Metal Prods. Co., 74 AD2d 898 [2nd Dept. 1980]). Moreover, the trial court has the duty "to see to it that the work of the jury is culminated by a true report of their intentions and decision" (see Goines v Pennsylvania R.R. Co., 208 Misc. 103, 111 [Sup. Ct. N.Y. County, 1955]). In light of the jury not following the instructions, which were clearly written on the verdict sheet, and apportioning liability to the non party doctors after not finding negligence on the part of the named defendants, this court should have had the jury polled to make certain of their intentions.

Accordingly, plaintiff's motion to set aside the verdict and declaring a mistrial is granted. Plaintiff is directed to serve a copy of this Order with Notice of Entry on the Clerk of the Trial Support Office (Room 158 at 60 Centre Street) to place the matter on the appropriate trial calendar. The Court need not address the other branches of plaintiff's motion in light of the granting of the mistrial.

This constitutes the decision and order of the Court.

So Ordered.