Opinion
2013-04-23
Galina OLSHANTESKY, Plaintiff–Appellant, v. The NEW YORK CITY TRANSIT AUTHORITY, Defendant–Respondent.
O'Connor Redd LLP, White Plains (Amy L. Fenno of counsel), for appellant. Wallace D. Gossett, Brooklyn (Renée L. Cyr of counsel), for respondent.
O'Connor Redd LLP, White Plains (Amy L. Fenno of counsel), for appellant. Wallace D. Gossett, Brooklyn (Renée L. Cyr of counsel), for respondent.
GONZALEZ, P.J., MAZZARELLI, MOSKOWITZ, RENWICK, MANZANET–DANIELS, JJ.
Order, Supreme Court, New York County (Lottie E. Wilkins, J.), entered July 19, 2012, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion to reinstate the jury verdict and to vacate the court's declaration of a mistrial, unanimously modified, on the law and the facts, to reinstate the verdict on damages, and order a new trial as to liability only, and otherwise affirmed, without costs.
Immediately after receiving the verdict in this personal injury action, an off-the-record discussion with the jury revealed that they had consulted an online dictionary to define the term “substantial.”
Although plaintiff contends for the first time on appeal that the court erred in declaring a mistrial after the jury was discharged based on “unsworn testimony” of the jury foreperson, appellate review of the argument is appropriate because it involves an essential question of whether the trial court exceeded its power and the issue “is apparent upon the face of the record and could not have been avoided if raised at the proper juncture” ( Rafa Enters. v. Pigand Mgt. Corp., 184 A.D.2d 329, 330, 586 N.Y.S.2d 888 [1st Dept. 1992] ).
The record shows that the jury had not been discharged when the court began its inquiry into the jury's misconduct. Indeed, after the court received the jury's verdict and thanked the jury for its service, the jury remained in the courtroom during an off-the-record discussion that revealed the misconduct and during a follow-up discussion on the record ( cf. Winters v. Brooklyn & Queens Tr. Corp., 236 App.Div. 819, 260 N.Y.S. 161 [2d Dept. 1932]; International–Madison Bank & Trust Co. v. Silverman, 234 App.Div. 619, 251 N.Y.S. 884 [2d Dept. 1931] ).
In any event, regardless of whether the jury was discharged, the court properly engaged in an inquiry regarding external influences on the jury ( see Sharrow v. Dick Corp., 86 N.Y.2d 54, 61, 629 N.Y.S.2d 980, 653 N.E.2d 1150 [1995];Alford v. Sventek, 53 N.Y.2d 743, 744, 439 N.Y.S.2d 339, 421 N.E.2d 831 [1981] ). Further, the court properly determined that the jury's act of consulting an outside dictionary on a term critical to its decision constitutes misconduct warranting a mistrial, especially since the foreperson indicated that the jury was “confused” about the term “substantial” and the court was unable to give curative instructions ( compare Maslinski v. Brunswick Hosp. Ctr., 118 A.D.2d 834, 500 N.Y.S.2d 318 [2d Dept. 1986], and Long v. Payne, 198 App.Div. 667, 668, 190 N.Y.S. 803 [4th Dept. 1921], with Kraemer v. Zimmerman, 249 A.D.2d 159, 160, 672 N.Y.S.2d 58 [1st Dept. 1998], and DiRende v. Cipollaro, 234 A.D.2d 78, 78–79, 650 N.Y.S.2d 695 [1st Dept. 1996], lv. denied90 N.Y.2d 806, 663 N.Y.S.2d 511, 686 N.E.2d 223 [1997] ).
However, because the jury's misconduct related only to the issue of liability, and there is no evidence that it affected the jury's determination on damages, we reinstate the verdict on damages ( see Pope v. 818 Jeffco Corp., 74 A.D.3d 1165, 902 N.Y.S.2d 418 [2d Dept. 2010] ).