Opinion
155539/2014
12-18-2019
Shakir Yusif FARSAKH, Plaintiff, v. TOWN SPORTS INTERNATIONAL, LLC and New York Sports Club TSI West 94, LLC, d/b/a New York Sports Club, Defendants.
Counsel for Plaintiff: Edward R. Averbuch, Esq., Leav & Steinberg LLP Counsel for Defendants: Jason C. Scott, Esq., Gordon & Rees
Counsel for Plaintiff: Edward R. Averbuch, Esq., Leav & Steinberg LLP
Counsel for Defendants: Jason C. Scott, Esq., Gordon & Rees
Lillian Wan, J.
The defendants, Town Sports International, LLC and New York Sports Clubs, TSI West 94, LLC d/b/a New York Sports Club (hereinafter NYSC), seek to set aside the jury verdict in favor of the plaintiff in this personal injury action and request an order, pursuant to CPLR § 4404(a), granting NYSC's motion for a directed verdict under CPLR § 4401 as a matter of law; or alternatively granting NYSC a new trial because the verdict was against the weight of the evidence. Defendants also seek to set aside the jury verdict as excessive, claiming it materially deviated from reasonable compensation, and argue that the Court should grant their motion for a mistrial and order a new trial because the jury reached an inconsistent verdict based on the verdict sheet it was given for its deliberations. The plaintiff opposes the defendants' motion. For the reasons set forth below, the defendants' motion is denied.
The trial of this matter arose from the plaintiff's slip and fall on an interior stairwell of the defendants' premises, NYSC, located at 2527 Broadway in Manhattan, at approximately 5:21 a.m. on January 6, 2014. The facts leading up to the plaintiff's accident are undisputed. The testimony at trial established that the plaintiff, Shakir Yusif Farsakh, who resides in Manhattan, intended to take a flight for a business trip to Las Vegas at 8:30 a.m. on the morning of the accident, however his flight was canceled because of inclement weather. Mr. Farsakh decided to walk to the gym. He testified that he left his apartment on West 96th Street between Amsterdam and Columbus Avenues and walked to the NYSC, which was located at 94th Street and Broadway in Manhattan. According to the plaintiff, he was wearing ankle height Merrell boots, which had a boot tread. He walked west on 96th Street, crossed Broadway, and traveled south to the entrance of the NYSC. The plaintiff also testified that he walked through snow along the way, and that before entering the NYSC he stomped his feet to remove excess slush and water from his boots.
Upon entering the gym on the main floor, the plaintiff stopped at the reception desk to have his membership card scanned. There were two thin, flat rubber mats by the reception desk, and Mr. Farsakh again stomped his feet on the mats. He testified that when he did so he saw water bubble up from inside the mats, similar to water that is released when squeezing a wet sponge. The plaintiff testified that he proceeded to the stairs leading to the lower level of the gym where the locker rooms are located. The stairway has two flights of stairs with a landing in between. According to his testimony, the plaintiff descended the stairs at a normal pace and was holding onto the handrail. As he proceeded down the second set of stairs his right foot slipped on a wet and slippery tread on the fourth stair from the bottom. After his fall, the plaintiff noticed that his jeans were wet on the leg and buttocks area, and he testified that they had not been wet prior to the fall. He then proceeded up the stairs to the main floor, and observed that the stairs were wet and glistening, and appeared brownish in color.
The check-in log from NYSC, which was introduced into evidence at trial, shows that 27 members entered and scanned their membership cards between 4:49 a.m. and 5:21 a.m., prior to Mr. Farsakh's arrival. Two members entered the gym at or about the same time as the plaintiff and preceded him down the stairs. Plaintiff also introduced photographs of the two mats that were in the reception area when Mr. Farsakh checked in on the date of the accident. Further, plaintiff's trial exhibits included photographs which the plaintiff alleged depict worn grip tape at the edge of the treads of each step, including the step where plaintiff fell toward the bottom of the second staircase. The plaintiff also introduced certified records from the National Oceanic and Atmospheric Administration (hereinafter NOAA), which established that in the four days preceding the plaintiff's accident there had been snow accumulation of at least six inches, and that on January 6, 2014, there had been 0.9 inches of precipitation.
At trial, the defendants read portions of the deposition transcript of Jacqueline Rodriguez, the General Manager of NYSC at the time of plaintiff's accident. Ms. Rodriguez arrived at work at 10:00 a.m., approximately five hours after the plaintiff fell, and did not recall seeing a wet condition on the floor leading from the front door to the reception desk, or on the mats in front of the reception desk. According to her deposition testimony, there was one NYSC employee working at the time of the accident.
The defendants called a liability expert witness, Scott Derector, who is a licensed professional engineer. Ten months after the accident, Mr. Derector visited the NYSC and inspected the area where plaintiff fell, and the floor mats in and around the reception area. An employee of NYSC confirmed that they were the same mats that were in use on the day of the plaintiff's fall. Mr. Derector conducted a subsequent inspection of the site in June 2019. Mr. Derector testified that in his expert opinion the floor mats, stairway and handrails were safe for their intended use. He further testified that there was no New York City Building Code requiring NYSC to use floor mats in inclement weather, or install two hand rails on both sides of the stairway, or anti-skid tape on each step. On cross-examination, Mr. Derector testified that it was possible that the 27 people who entered the NYSC before Mr. Farsakh on the day of the accident could have tracked water on the stairs if the mats in front of the reception area were saturated with water. The plaintiff did not call a liability expert at trial.
The plaintiff called Mr. Farsakh's treating physician, Dr. Benjamin E. Rosenstadt, who is board certified in orthopedic and hand surgery to testify concerning the plaintiff's injuries. He testified that as a result of the fall the plaintiff sustained wrist fractures consisting of a comminuted fracture of the distal radius and a fracture of the ulnar styloid bone. A closed reduction was performed, however the procedure was not successful and approximately one week later Dr. Rosenstadt performed open reduction and internal fixation surgery. According to his testimony, 10 screws were permanently affixed to the distal radius, and a percutaneous pin was inserted from the ulnar styloid to the ulna. The plate and screws are still in place; however, the ulna styloid fracture has not healed.
Dr. Rosenstadt testified that the plaintiff will have chronic issues with his wrist in the future. The defendants' examining physician, Dr. Roy Kulick, who is also board certified in orthopedic and hand surgery, did not dispute Dr. Rosenstadt's assessment of the plaintiff's injuries, the surgery that was performed, or that the ulnar styloid bone has not healed. On January 16, 2014, two weeks after the surgery, the plaintiff began occupational therapy on his wrist twice weekly, which continued until May 2014. In accordance with Dr. Rosenstadt's instructions, the plaintiff stopped formal therapy and continued to perform the exercises at home.
The plaintiff testified that the injuries he sustained from the accident prevent him from engaging in various activities he had enjoyed prior to the accident, including playing tennis and practicing yoga. He further testified that for months after the accident he was not able to lift his four-year-old daughter, and that his injuries interfere with his ability to carry out important aspects of his duties as a United States Diplomat.
Prior to the commencement of trial, the parties submitted proposed jury charges and the defendants submitted a proposed verdict sheet. Both the plaintiff and defendants requested that Pattern Jury Instruction (hereinafter PJI) 2:91, Liability for Condition or Use of Land—Possessor's Liability—Unsafe Condition—Foreign Substances—Slip and Fall Cases, be included in the jury charges. The verdict sheet submitted by the defendants did not include the language contained in the special verdict sheet referenced in PJI 2:91.
When the plaintiff rested, the Court held a charge conference with the attorneys on the proposed jury charges and the interrogatories to be included in the verdict sheet. Both parties agreed to include PJI 2:91 as one of the jury charges. With respect to the verdict sheet, plaintiff's counsel advised the Court that, "the special verdict form for PJI 2:91, numbers 1 through 14, depending on what the Court's decision is with regard to failure to warn, all those would be in. And the state[d] claim condition would be the water on the stairs throughout that." Defense counsel responded, "[y]es, we agree to that." The attorneys were directed to jointly submit the proposed jury charges and interrogatories for the special verdict sheet that correlates with PJI 2:91. Over the weekend, the parties submitted the agreed upon jury charges, and the interrogatories relating to the special verdict sheet from PJI 2:91.
However, just prior to charging the jury, defense counsel informed the Court that the defendants were withdrawing their consent to using the special verdict sheet from PJI 2:91, and instead were requesting that the Court use the proposed verdict sheet submitted at the start of the trial. The plaintiff objected, arguing that the verdict sheet initially proposed by the defendants was too generic, and that in light of the specific language of PJI 2:91, the special verdict sheet was more appropriate to the facts of the case. The Court denied the defendants' request, noting that the PJI clearly states that "[t]he following special verdict form should be used in conjunction with PJI 2:91."
Thereafter, the jury returned a verdict in favor of the plaintiff. When the jurors were polled it became apparent that the verdict was inconsistent. The jury found that the defendants were negligent, and that the plaintiff was not negligent. However, instead of proceeding to the damages question, as the instructions directed, the jury erroneously answered the next two questions finding that the plaintiff's negligence was not a substantial factor in causing his injuries, and apportioned 10% fault to plaintiff. The jury awarded the plaintiff damages in the amount of $350,000.00 for past pain and suffering and loss of enjoyment of life, and $400,000.00 for future pain and suffering and loss of enjoyment of life over the next 20 years. The jurors also failed to follow the instructions on the verdict sheet directing each juror to sign their names on the lines provided after each answered question, with the exception of question No.10.
Based on the inconsistent verdict, defense counsel requested a mistrial pursuant to CPLR § 4402. The defendants argued that the inconsistent verdict indicated that the jury did not understand the instructions given to them by the Court, and that the verdict sheet given to the jury from PJI 2:91 caused the jury's confusion. The plaintiff opposed the application, arguing that a mistrial was not required because the jury had not yet been discharged, and that it was in the Court's discretion whether to give the jury curative instructions concerning the inconsistency. The plaintiff further argued that the only inconsistency was plaintiff's comparative fault, if any, and that the verdict was consistent with regard to the defendants' liability.
The Court denied the defendants' application for a mistrial, relying on CPLR § 4111(c), which provides that when a jury returns an inconsistent verdict the Court has the discretion to require the jury to further consider its answers and verdict, or order a new trial. In denying the defendants' request for a mistrial the Court also relied on prevailing Appellate Division, First Department case law. The Court noted that in Alvarez v. Beltran , 121 AD3d 488 (1st Dept 2014), the jury returned an inconsistent verdict that was analogous to the instant case. In reversing the trial court the Appellate Division, First Department held that that the jury should have been instructed to reconsider its "answers and verdict" and not just its answer on apportionment, and that upon reconsideration the "jury is free to change its verdict to reflect its real intention." Id. at 488-489. The Court also cited to Rodriguez v. F.D.R Temple Assoc., Inc. , 24 Misc 3d 110 (App Term, 1st Dept 2009), in determining that the jury should be instructed to reconsider its findings. The Court found that a mistrial was not warranted because there was no indication that the jury was hopelessly confused.
When the jurors returned to the courtroom, the Court informed them that their answers to certain questions on the verdict sheet were inconsistent. The Court then gave the jury the following instructions:
I would point out that question number seven reads as follows: Was Shakir Farsakh negligent? You answered no. The instructions in both on the bottom say the following: If the answer to question seven is yes, go to question eight. If the answer to question seven is no, go directly to question ten. Do not answer questions eight and nine. You then went on to answer question eight. Was Shakir Farsakh's negligence also a substantial factor in causing his own injury? You answered no. The instruction in bold then read, if the answer to question eight is yes, go to question nine. If the answer to question eight is no, go directly to question ten, do not answer question nine. You then went on to answer question nine, which is an apportionment of fault between the defendant and plaintiff. These answers are not consistent with each other. The instructions state you do not answer question eight and question nine if your answer to question seven is no. Therefore, I need to direct you to continue your deliberations. I am giving you a fresh, blank verdict sheet. You are free to reconsider any answer you have. I will allow you to take the first verdict sheet back for your reference. You are not bound by any answer you initially gave.
The Court also instructed the jury that upon answering each question, the jurors were to sign their name on the appropriate line, indicating whether they agree or do not agree with the answer. The jury was told to prepare a note to the Court if there was any confusion or question. A short time later, the jury returned a verdict that was consistent, answering "no" to question #7, and skipping questions #8 and #9. The jury went on to answer question #10, and awarded damages to the plaintiff that were identical to those awarded on the original verdict sheet. Moreover, each juror signed his/her name at the end of each question. The jury was polled, revealing that the verdict was unanimous.
The defendants now renew their motion, made at the close of plaintiff's case, to set aside the verdict pursuant to CPLR § 4404(a), and seek a directed verdict under CPLR § 4401 as a matter of law. The defendants assert that the plaintiff failed to establish a prima facie case of negligence, because he did not present any evidence of actual or constructive notice or a recurring condition that was the proximate cause of plaintiff's fall. The plaintiff opposes the motion, asserting that constructive notice was established by the evidence presented at trial that the reception area mats were saturated when the plaintiff stepped on them, and that 32 minutes prior to plaintiff's arrival at least 27 members preceded the plaintiff into the NYSC, tracking water onto the stairway, causing plaintiff's fall. The plaintiff further asserts that constructive notice was established by plaintiff's observation of the glistening wet and brownish substance on the stairs, and that the area where plaintiff fell was so wet that the legs and buttocks of the plaintiff's jeans were wet after he fell.
It is well-settled that vacatur of a verdict based on a claim of insufficiency as a matter of law requires that the trial court determine that the jury verdict is "utterly irrational." Killon v. Parrotta , 28 NY3d 101, 108 (2016), quoting Campbell v. City of Elmira , 84 NY2d 505 (1994) (internal quotation marks omitted). In order for the trial court to reach such a conclusion it must find that "there is simply no valid line of reasoning and permissible inferences which could possibly lead [a] rational [person] to the conclusion reached by the jury on the basis of the evidence presented at trial." Id. The standard for setting aside a jury verdict has been clearly enunciated by the Court of Appeals in Blum v. Fresh Grown Preserve Corporation , 292 NY 241, 246 (1944) :
The sufficiency of evidence [to] reasonably satisfy a jury cannot be mechanically measured. It is incredible as [a] matter of law only where no reasonable man could accept it and base an inference upon it. That depends upon considerations which vary in accordance with the circumstances of the particular case (internal quotation marks omitted).
See also Szczerbiak v. Pilat , 90 NY2d 553 (1997) ; Glick v. City of New York , 139 AD2d 402 (1st Dept 1988).
Moreover, in deciding whether plaintiff has established a prima facie case a trial court is required to "view the evidence in a light most favorable to [plaintiff], giving [him] the benefit of every inference which could reasonably be drawn from the facts presented at trial and resolving all questions as to witnesses' credibility in [plaintiff's] favor." Cruz v. Madison Detective Bur., 137 AD2d 86, 89 (1st Dept 1987) ; see also , Seaman v. City of New York , 294 AD2d 144, 144 (1st Dept 2002) ("[w]hen plaintiff's evidence is accorded its proper treatment, that is accepted as true and given every favorable inference, it provides a sufficient basis for the jury to rationally find in his favor").
The standard for determining whether the evidence at trial is sufficient as a matter of law is a rigorous one, since the consequence of such a finding is a judgment in favor of the opposing party. Cohen v. Hallmark Cards , 45 NY2d 493 (1978). Therefore, where the right to a jury trial exists, and the evidence presents issues of fact it is not proper for the court to direct a verdict. Id. See Dominguez v. Manhattan & Bronx Surface Tr. Operating Auth. , 46 NY2d 528 (1979) (the test for sufficiency as a matter of law is whether the evidence creates a question of fact sufficient to sustain the jury's determination of that factual question); Camillo v. Olympia & York Propers. Co. , 157 AD2d 34, 41-42 (1st Dept 1990) ("[i]t is black letter law that the trial court may not usurp the assigned responsibility of the jury and on its own decide disputed issues of fact").
In the alternative, the defendants argue that they are entitled to a new trial because the verdict was against the weight of the evidence. The defendants claim that the evidence presented by the plaintiff failed to identify the defective condition that caused his fall. A jury verdict may not be disregarded as against the weight of the evidence unless "the evidence so preponderate[d] in favor of the [moving party] that it could not have been reached on any fair interpretation of the evidence." Killon v. Parrotta , 28 NY3d at 107-108, quoting Lolik v. Big V Supermarkets, 86 NY2d 744 (1995) ; Grassi v. Ulrich , 87 NY2d 954 (1996). The determination of whether a verdict is against the weight of the evidence is a factual one which involves "a discretionary balancing of many factors." Cohen v. Hallmark Cards , 45 NY2d at 499. In Stryker Sec. Group Inc. v. Elite Investigations Ltd. , 170 AD3d 553 (1st Dept 2019), the Appellate Division, First Department rejected the defendant's argument that the verdict was against the weight of the evidence, finding that the jury was entitled to believe the third-party defendant's witnesses rather than the defendant's witnesses, and that the jury verdict could have been reached based on a fair interpretation of the evidence.
Likewise, in Martinez v. Metropolitan Transp. Auth. , 159 AD3d 584 (1st Dept 2018), the Appellate Division, First Department found a fair interpretation of the evidence supported the jury verdict where a conflict between the plaintiff's testimony and two witnesses concerning the cause of the plaintiff's fall merely presented a credibility issue for the jury to resolve. In Munoz v. New York Presbyt. Hosp. , 170 AD3d 512, 512 (1st Dept 2019), the Appellate Division, First Department held that conflicting expert testimony in a medical malpractice trial raised "an issue of credibility peculiarly within the province of the jury," and a fair interpretation of the evidence supported the jury's verdict.
The defendants' contentions that the jury verdict should be set aside and that they are entitled to a directed verdict are without merit. The plaintiff presented ample evidence of actual and/or constructive notice of the wet and slippery condition of the floor and stairs at the time of plaintiff's fall. The evidence showed that precipitation on the day of the accident and snowstorms on the preceding four days, caused the accumulation of water, puddles and slush on the streets and sidewalks of New York City, and along the route the plaintiff walked from his apartment to the NYSC. The plaintiff presented a certified weather report from the NOAA to establish the weather conditions at the time of and prior to the plaintiff's fall. The plaintiff testified that on the day of the accident when he arrived at the gym his shoes were wet, and he stomped his feet before entering the NYSC. He did so again when he reached the mats, which were directly in front of the check-in counter at the NYSC. He further testified that the mats were so saturated that he could hear and see the excess water coming out of the mats when he stepped on them.
The evidence further established that there was a NYSC employee at the check-in counter where the mats were located, and that 27 membership cards had been scanned over the course of 32 minutes prior to the plaintiff's arrival at the club at 5:21 a.m. The plaintiff observed that his jeans were wet on the legs and buttocks area after he fell, and that they had not been wet prior to his fall. He also observed that the stairs were wet, glistening, and brownish in color as he made his way back up the stairs after his fall. Plaintiff also introduced photographs that he argued depict worn grip tape at the edge of the treads of each step, including the step the plaintiff fell on.
In light of the above, the evidence was sufficient as a matter of law to support the jury's verdict that the plaintiff established a prima facie case that the defendants were negligent. Viewing the evidence presented at trial in a light most favorable to the plaintiff, giving the plaintiff the benefit of every reasonable inference, and resolving all questions as to witnesses' credibility in plaintiff's favor, it is clear that the jury's verdict was not utterly irrational and therefore should not be disturbed.
Similarly, the defendants' argument that a new trial is required because the verdict was against the weight of the evidence must also be rejected. A fair interpretation of the evidence firmly establishes that the jury found the plaintiff's testimony and documentary evidence more credible than the evidence presented by the defendants. The defendants' claim, that the jury ignored facts that it asserts show the defendants were not negligent, is inapposite. It is within the sole province of the jury to determine the credibility of witnesses and to make findings of fact based on the evidence presented at trial. As such, the jury's verdict was not against the weight of the evidence, and the defendants are not entitled to a new trial.
The defendants also assert that the damages awarded by the jury are excessive and should be set aside pursuant to CPLR § 5501(c), because they "deviate materially from what would be reasonable compensation." The defendants assert that the award is so large and unfounded in evidence that it could only be a result of passion, prejudice, sympathy or the consideration of some other improper element of damages. The defendants' argument is based on mere conjecture and speculation, and is without merit. A trial court's decision is accorded great weight as that court "ha[s] the benefit of observing witnesses, their demeanor and their impact on the jury." Pinto v. Gormally , 109 AD3d 425, 427 (1st Dept 2013). In determining whether the damages award materially deviates from what would be reasonable compensation the trial court must consider the type of injury, level of pain and the period of time for which the pain is being calculated. Id.
In Pinto the Appellate Division, First Department upheld a jury award of $200,000.00 for past pain and suffering and $400,000.00 for future pain and suffering where the plaintiff sustained fractures to his left hand after a box of tiles fell on his hand when he slipped and fell on stairs. The plaintiff underwent two operations, one of which included external fixation. See Pinto v. Gormally , Sup Ct, Bronx County, May 7, 2013, Guzman, J., index No. 6172/2007. Similarly, in Diouf v. New York City Tr. Auth. , 77 AD3d 600 (1st Dept 2010), a jury award of $800,000.00 was affirmed for future pain and suffering when the 55-year-old plaintiff fell on stairs leading into the subway station and sustained a fracture to both wrists, requiring two surgeries and a course of occupational therapy.
In Cabezas v. City of New York , 303 AD2d 307 (1st Dept 2003), the Appellate Division, First Department held that an award by the jury of $450,000.00 for past pain and suffering and $450,000.00 for future pain and suffering did not deviate materially from what is reasonable compensation. The plaintiff broke his wrist on his dominant hand after falling on the sidewalk and underwent two operations, one of which involved external fixation. Further, in Alfonso v. Metropolitan Tr. Auth. , 103 AD3d 563 (1st Dept 2013), the 52-year-old plaintiff received a jury award of $400,000.00 for past pain and suffering and $800,000.00 for future pain and suffering for a fractured right wrist and injuries to her neck and right shoulder. Analogous to the facts of the instant case, a closed reduction of the fracture failed, requiring the plaintiff to undergo surgery for an open reduction with internal fixation of a metal plate and screws which permanently remained in the wrist. The plaintiff received physical therapy for three months for the wrist, and an additional six months for the shoulder injury, which did not require surgery. The Appellate Division, First Department found that the jury's award was reasonable compensation under the circumstances, and denied the defendant's request for a reduction of the damages award.
In Cardoza v. City of New York , 139 AD3d 151 (1st Dept 2016), the plaintiff suffered a complex fracture of his right hand and right index finger. He also suffered from post traumatic stress disorder as a result of the incident. The fractures required open reduction and internal fixation surgery with the insertion of wires to hold the bones of the finger together. The jury awarded $500,000.00 for past pain and suffering, and $2,000,000.00 for future pain and suffering. Although the Appellate Division, First Department found that the award was excessive, it awarded the plaintiff $400,000.00 for past pain and suffering and $1,250,000.00 for future pain and suffering as reasonable compensation based on the facts of that case.
Turning to the instant matter, based on a review of prevailing case law as well as the evidence adduced at trial concerning the plaintiff's injuries, the jury award of $350,000.00 for past pain and suffering, and $400,000.00 for future pain and suffering over the next 20 years does not deviate materially from what would be reasonable compensation. The plaintiff, who sustained a comminuted fracture of the distal radius, and a fracture of the ulnar styloid bone, underwent an open reduction and internal fixation surgery, with the permanent placement of a metal plate and screws, after a closed reduction failed. The defendants' examining physician, Dr. Kulick, did not dispute the extent of the injuries or the surgery. The plaintiff's medical expert, Dr. Rosenstadt, testified concerning the surgical procedure, which involved the insertion of permanent hardware to stabilize the wrist fracture, and the failure of the ulnar styloid bone to heal. Dr. Rosenstadt also testified that in his expert opinion the plaintiff's prognosis is guarded because he will have chronic issues with his wrist in the future.
Additionally, the plaintiff testified that as a result of the injuries he sustained he experiences a constant ache in his right wrist, and that he can no longer practice yoga because the pain is aggravated when he places his body weight on it. The plaintiff also testified that he was an avid tennis player before the accident, and that it was one of the few sports he excelled at. According to the plaintiff, he was on a junior varsity tennis team in high school and loved to play tennis. The plaintiff testified that he has attempted to play tennis on a couple of occasions since the accident, but it caused pain in his wrist. He stated that he can no longer play a lot of tennis, his favorite sport, and that although he was hoping to share his love of tennis with his daughter by teaching her how to play, he is unable to do so.
The plaintiff also testified that the injury has affected his work as a United States Diplomat in Dubai, United Arab Emirates. He testified that in his role as a United States Diplomat he shakes hands frequently, and it is important that he have a firm handshake, but now it causes pain in his wrist. The plaintiff further testified that as a result, he becomes "a little nervous" when shaking hands because sometimes his wrist throbs afterward.
After the accident the plaintiff was out of work for one month, but was allowed to work from home. He testified that during that period the injuries to his wrist made it necessary for him to modify the manner in which he typed, and that he was unable to perform core functions of his job, such as visiting companies. Further, he testified that a large part of his job involves using the computer, and that since the accident his wrist aches from typing at the end of the day. The plaintiff also testified that he was unable to lift his four-year-old daughter for months after the accident. Accordingly, the defendants' request to set aside the verdict and reduce the damages award is denied, as it does not deviate materially from what would be reasonable compensation.
The defendants' final contention, that a mistrial was required because the jury was confused by the verdict sheet and therefore returned an inconsistent verdict, is unavailing. Pursuant to CPLR § 4111(c), if a jury's answers to interrogatories are consistent with one another, but one or more is in conflict with the general verdict, the court has discretion to order a new trial or require the jury to reconsider or enter judgment according to the answers. However, if the answers are inconsistent with one another and one or more conflicts with a general verdict, the court's alternatives are limited to order reconsideration or a new trial. See Rodriguez v. F.D.R. Temple Assoc. Inc. , 24 Misc 3d 110, 112 (App Term, 1st Dept 2009) ; Marine Midland Bank v. Russo Produce Co. , 50 NY2d 31 (1980). Furthermore, on reconsideration of its answers and verdict the jury is free to change its verdict "to reflect its real intention." See Alvarez v. Beltran , 121 AD3d at 488-489.
Based on the facts and circumstances of the instant case, the defendants' argument that a mistrial was necessary is not supported by the record or prevailing case law. The jury was given the appropriate verdict sheet in light of the specific language of PJI 2:91, which clearly states that the special verdict sheet should be used in conjunction with the jury charge. The verdict sheet was clear and unambiguous. Moreover, when it became apparent that the verdict was inconsistent after the jury returned and the jurors were polled, the inconsistency was immediately addressed by the Court prior to discharging the jury. The Court read the jury the questions and answers that were inconsistent, along with the instructions at the end of each question. The Court then instructed the jury that in light of the inconsistent verdict the jury should reconsider its verdict, and that it was not bound by the answers it had initially provided on the verdict sheet. The jury was given an unmarked copy of the verdict sheet, as well as the original verdict sheet for reference purposes. The Court then instructed the jury to return to its deliberations in light of the Court's instructions.
Shortly thereafter, the jury returned its verdict which was internally consistent. The jury determined that the defendants were negligent, and following the instructions at the end of question #7, the jury skipped questions #8 and #9 and went directly to question #10. The damages awarded to the plaintiff were identical to the damages awarded in the initial verdict. Thereafter, the jury was polled, and the verdict was unanimous. Contrary to the defendants' contentions, a mistrial was not required because it is apparent that the jury was not confused when rendering its final verdict. When instructed by the Court to reconsider its initial verdict in light of the Court's instructions, the jury swiftly returned with a consistent verdict, following the instructions at the end of each interrogatory.
Accordingly, based on the foregoing, the defendants' motion seeking a new trial must be denied.
IT IS HEREBY ORDERED, that the defendants' motion, pursuant to CPLR § 4401, seeking to set aside the jury verdict based on the plaintiff's failure to establish a prima facie case of negligence, and enter judgment in favor of the defendants, is denied; and it is further
ORDERED, that the defendants' motion, pursuant to CPLR § 4404(a), seeking a new trial because the verdict was against the weight of the evidence is denied; and it is further
ORDERED, that the defendants' motion seeking to set aside the verdict as excessive because it materially deviates from reasonable compensation is denied; and it is further
ORDERED, that the defendants' motion seeking a mistrial and a new trial because the jury reached an inconsistent verdict is denied.
This constitutes the decision and order of the Court.