Opinion
March 20, 1978
In a negligence action to recover damages for personal injuries, etc., defendants appeal from an order of the Supreme Court, Kings County, dated June 8, 1977, which, inter alia, set aside a unanimous jury verdict in favor of defendants and directed a new trial. Order reversed and verdict reinstated, with costs. There was no instance of juror misconduct that required that the jury verdict be set aside. When questioned on voir dire whether she knew the plaintiff David Wiener, juror Rolnick truthfully responded in the negative. It was not until several days into the trial that she thought she recognized him and so stated to the other jurors. If Ms. Rolnick's statements to the other jurors that she possibly recognized plaintiff David Wiener are considered misconduct, it does not justify the court's setting aside of the unanimous verdict. The evidence at the trial was overwhelmingly in favor of the defendants and there was no prejudice to any of the parties as a result of Ms. Rolnick's statements. "It is not every irregularity in the conduct of jurors that requires a new trial. The misconduct must be such as to prejudice a party in his substantial rights" (People v Dunbar Contr. Co., 215 N.Y. 416, 426). In any event, the record makes it clear that there was no prejudice or bias on the part of any of the jurors in reaching their verdict. Further, the trial court's error was compounded by holding a hearing in the absence of defendants' counsel. Defendants were thereby deprived of their due process rights to notice and to an opportunity to be heard. Titone, J.P., Gulotta, Shapiro and Cohalan, JJ., concur.