Opinion
May 18, 1992
Appeal from the Supreme Court, Queens County (Smith, J.).
Ordered that the judgment is reversed, as a matter of discretion, without costs or disbursements, and a new trial is ordered on the issue of damages only.
The record of the damages phase of this bifurcated trial reveals that during its charge to the jury, the Supreme Court reminded the jurors of their previous verdict on the issue of liability, but failed to instruct them to disregard the liability verdict in calculating the amount of damages to be awarded to the plaintiffs (see, PJI 2:36.1 [Supp]; McStocker v. Kolment, 160 A.D.2d 980; Scaduto v. Suarez, 150 A.D.2d 545; cf., Labov v. City of New York, 154 A.D.2d 348; Soto v. City of New York, 139 A.D.2d 551). The jury thereafter rendered a verdict awarding total damages of $122,300 to the plaintiffs, and the trial court reduced this figure by the percentage of fault attributable to the injured plaintiff. We now reverse and order a new trial on the issue of damages only.
While the error in the court's charge has not been preserved for appellate review by a request to charge or by valid objections of the plaintiffs' counsel, we find that under the circumstances of this case, this error created an issue as to whether the judgment accurately reflects the amount of damages which the jurors intended the plaintiffs to receive. Accordingly, a new trial limited to the issue of damages only is appropriate (see, e.g., McStocker v. Kolment, supra; Scaduto v. Suarez, supra; Luppino v. Busher, 119 A.D.2d 554).
We further note that the plaintiffs' counsel has procured posttrial affidavits from five of the jurors in this case and has submitted them on this appeal in further support of the plaintiffs' position. However, the use of such affidavits for the purpose of exploring the deliberative processes of the jury and impeaching its verdict is patently improper (see, Kaufman v Lilly Co., 65 N.Y.2d 449; Grant v. Endy, 167 A.D.2d 807; Russo v Jess R. Rifkin, D.D.S., P.C., 113 A.D.2d 570); hence, we have not considered this matter outside the record in reaching our determination (see, e.g., McStocker v. Kolment, supra; Scaduto v Suarez, supra; Wylder v. Viccari, 138 A.D.2d 482). Sullivan, J.P., Harwood, Ritter and Copertino, JJ., concur.