Opinion
510 CA 20-00400
07-16-2021
Patti FITZGERALD, Plaintiff-Appellant-Respondent, v. Steven KULA, Defendant-Respondent-Appellant.
MICHAEL STEINBERG, ROCHESTER, FOR PLAINTIFF-APPELLANT-RESPONDENT. TREVETT CRISTO P.C., ROCHESTER ( ERIC M. DOLAN OF COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT.
MICHAEL STEINBERG, ROCHESTER, FOR PLAINTIFF-APPELLANT-RESPONDENT.
TREVETT CRISTO P.C., ROCHESTER ( ERIC M. DOLAN OF COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order and judgment so appealed from is unanimously reversed on the law without costs, the verdict is set aside and the matter is remitted to Supreme Court, Ontario County, for a new trial.
Memorandum: Plaintiff commenced this action seeking damages for, inter alia, assault and battery, and in his amended answer defendant asserted counterclaims for, inter alia, defamation. The matter proceeded to trial, and now plaintiff appeals and defendant cross-appeals from an order and judgment of Supreme Court that denied the parties’ respective motions to set aside portions of the jury verdict and, upon the jury verdict, awarded damages both to plaintiff and to defendant. We reverse.
We agree with defendant on his cross appeal that the court erred in denying his request to poll the jury. "A party has an absolute right to poll the jury, and a court's denial of that right mandates reversal and a new trial" ( Holstein v. Community Gen. Hosp. of Greater Syracuse , 20 N.Y.3d 892, 893, 956 N.Y.S.2d 475, 980 N.E.2d 523 [2012] ; see Duffy v. Vogel , 12 N.Y.3d 169, 175, 878 N.Y.S.2d 246, 905 N.E.2d 1175 [2009] ; Muth v. J & T Metal Prods. Co. , 74 A.D.2d 898, 898, 425 N.Y.S.2d 858 [2d Dept. 1980], lv dismissed 51 N.Y.2d 703, 432 N.Y.S.2d 1026, 411 N.E.2d 796 [1980], lv dismissed 51 N.Y.2d 745, 432 N.Y.S.2d 365, 411 N.E.2d 784 [1980] ; see generally Matter of National Equip. Corp. v. Ruiz , 19 A.D.3d 5, 12-13, 794 N.Y.S.2d 2 [1st Dept. 2005] ). We therefore reverse the order and judgment and remit the matter to Supreme Court for a new trial ( see Dore v. Wyer , 1 A.D.2d 973, 974, 150 N.Y.S.2d 886 [2d Dept. 1956] ; see generally Holstein , 20 N.Y.3d at 893, 956 N.Y.S.2d 475, 980 N.E.2d 523 ). In light of our determination, we do not address the remaining contentions of the parties.