Opinion
06-08-2016
YOUNG MEE OH, et al., appellants, v. Raymond H. KOON, respondent.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellants. Mendolia & Stenz, Westbury, N.Y. (Katie A. Walsh and Stephen Murray of counsel), for respondent.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellants.
Mendolia & Stenz, Westbury, N.Y. (Katie A. Walsh and Stephen Murray of counsel), for respondent.
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, ROBERT J. MILLER, HECTOR D. LaSALLE, JJ.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Butler, J.), entered June 23, 2015, which denied their motion pursuant to CPLR 4404(a) to set aside a jury verdict on the issue of liability in favor of the defendants and for a new trial on the ground that the verdict was the product of juror confusion or as contrary to the weight of the evidence. ORDERED that the order is affirmed, with costs.
Pursuant to CPLR 4404(a), a trial court has the discretion to set aside a jury verdict and grant a new trial where the verdict is clearly the product of substantial confusion among the jurors (see Ki Tak Song v. Oizumi, 120 A.D.3d 557, 558, 990 N.Y.S.2d 639 ; Ledogar v. Forbes, 84 A.D.3d 749, 751, 922 N.Y.S.2d 508 ; Kevii v. Cenname, 21 A.D.3d 1061, 1062, 803 N.Y.S.2d 618 ; Kinney v. Taylor, 305 A.D.2d 466, 467, 758 N.Y.S.2d 840 ). The confusion must be apparent from the trial record (see Porter v. Milhorat, 26 A.D.3d 424, 424, 809 N.Y.S.2d 210 ; Moisakis v. Allied Bldg. Prods. Corp., 265 A.D.2d 457, 697 N.Y.S.2d 100 ; Wylder v. Viccari, 138 A.D.2d 482, 525 N.Y.S.2d 882 ; see also Cortes v. Edoo, 228 A.D.2d 463, 466, 644 N.Y.S.2d 289 ).
Absent exceptional circumstances, a juror's affidavit may not be used to attack a jury verdict (see Richards v. Forest City Enters., 272 A.D.2d 462, 708 N.Y.S.2d 320 ; Moisakis v. Allied Bldg. Prods. Corp., 265 A.D.2d at 457, 697 N.Y.S.2d 100 ). The use of post-discharge juror affidavits to attack the verdict is “patently improper” where the record is devoid of any evidence of external influence, juror confusion, or ministerial error in reporting the verdict (Richards v. Forest City Enters., 272 A.D.2d at 463, 708 N.Y.S.2d 320 [internal quotation marks omitted]; see Hoffman v. Domenico Bus Serv., 183 A.D.2d 807, 808, 584 N.Y.S.2d 122 ).
Here, the plaintiffs acknowledged that the jury was properly charged and there was absolutely no evidence on the record of any juror confusion regarding any issue related to the Supreme Court's instructions. It is undisputed that the jurors never requested a read-back of any portion of the court's instructions. Under these circumstances, the use of juror affidavits in an attempt to attack the verdict is patently improper (see Richards v. Forest City Enters., 272 A.D.2d at 462, 708 N.Y.S.2d 320 ; Hoffman v. Domenico Bus Serv., 183 A.D.2d at 808, 584 N.Y.S.2d 122 ).
“[A] jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence” (Corcoran v. People's Ambulette Serv., 237 A.D.2d 402, 403, 656 N.Y.S.2d 877 ; see Costa v. Lopez, 120 A.D.3d 607, 607, 990 N.Y.S.2d 878 ; Nicastro v. Park, 113 A.D.2d 129, 134, 495 N.Y.S.2d 184 ). “ ‘When a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view’ ” (Scalogna v. Osipov, 117 A.D.3d 934, 935, 987 N.Y.S.2d 395, quoting Handwerker v. Dominick L. Cervi, Inc., 57 A.D.3d 615, 616, 869 N.Y.S.2d 201 ). “It is for the jury to make determinations as to the credibility of the witnesses, and great deference in this regard is accorded to the jury, which had the opportunity to see and hear the witnesses” (Scalogna v. Osipov, 117 A.D.3d at 935, 987 N.Y.S.2d 395 ). “A jury may believe or disbelieve the testimony of a witness, or believe portions of the testimony and disbelieve others” (id. ). “A jury's finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” ( garrett v. manasEr, 8 A.d.3d 616, 617, 779 n.y.s.2d 565 ; see Ruggiero v. Weth, 122 A.D.3d 828, 829, 996 N.Y.S.2d 670 ; Almestica v. Colon, 12 A.D.3d 627, 785 N.Y.S.2d 522 ).
Here, it cannot be said that the jury's verdict, which found that the defendant was negligent but that his negligence was not a substantial factor in causing the accident, could not have been reached on any fair interpretation of the evidence (see Scalogna v. Osipov, 117 A.D.3d at 935, 987 N.Y.S.2d 395 ; Almestica v. Colon, 12 A.D.3d at 627, 785 N.Y.S.2d 522 ).
Accordingly, the Supreme Court properly denied the plaintiffs' motion pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability and for a new trial on the ground that it was the product of juror confusion or as contrary to the weight of the evidence.