Opinion
06-16-2016
Jenise JETT, Plaintiff–Appellant, v. CITY OF NEW YORK, et al., Defendants–Respondents.
Kelner & Kelner, New York (Ronald C. Burke of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Max McCann of counsel), for respondents.
Kelner & Kelner, New York (Ronald C. Burke of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Max McCann of counsel), for respondents.
MAZZARELLI, J.P., ACOSTA, SAXE, KAPNICK, KAHN, JJ.
Judgment, Supreme Court, New York County (Nancy M. Bannon, J.), entered September 1, 2015, after a jury trial, upon a verdict in favor of defendants, unanimously reversed, on the law, without costs, and the matter remanded for a new trial.
The trial court did not improvidently exercise its discretion in refusing to discharge a juror who expressed concern about continuing deliberations, in the absence of evidence that he was “unable to perform the duties of a juror” (CPLR 4106 ). After plaintiff's counsel suggested “that we tell the jury to come back on Monday,” the juror agreed to return to continue deliberations.
However, we find that the trial court's failure to charge defendant 120–22 West 139th Street Tenant Association's former superintendent as an interested witness constitutes reversible error (see Kalam v. K–Metal Fabrications, 286 A.D.2d 603, 604, 730 N.Y.S.2d 299 [1st Dept.2001] ). As a former employee of a party and participant in the accident, who was charged with creating an icy condition by hosing down the sidewalk on a freezing day, the former superintendent was an interested witness (see Coleman v. New York City Tr. Auth., 37 N.Y.2d 137, 141–142, 371 N.Y.S.2d 663, 332 N.E.2d 850 [1975] ; Lowenstein v. Normandy Group, LLC, 51 A.D.3d 517, 518–519, 859 N.Y.S.2d 29 [1st Dept.2008] ; cf. Norton v. Port Auth. of N.Y. & N.J., 94 A.D.3d 677, 943 N.Y.S.2d 82 [1st Dept.2012] ). The court's general charge on the assessment of credibility and determination as to whether a witness is an interested one is not a substitute for an interested witness charge. Given the pivotal role that the witness's testimony played in defendants' case, which pitted his reliability against that of an alleged eyewitness, the error was not harmless.