Lankios v Elbaz

[*1] Lankios v Elbaz 2005 NY Slip Op 50659(U) Decided on May 3, 2005 Civil Court, Kings County Nadelson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 3, 2005
Civil Court, Kings County

Roman Lankios, Plaintiff,

against

Isaac Elbaz, Defendant.



1857/01

Eileen N. Nadelson, J.

Plaintiff instituted this action for personal injuries resulting from an automobile accident. After three days of deliberations, the jury sent the court the following note:

Each juror has a very strong view on the case. It is the jurors' collective

and unanimous conclusion that we cannot reach a verdict of 5 to 1 for

Question No. 1.

Question # 1 on the Verdict Sheet asks "Was the defendant negligent"?

Section 4113(a) of the CPLR states that "[a] verdict may be rendered by not less than five-sixths of the jurors constituting a jury."

At this juncture, the court recessed the jury for the day and requested that they return the following morning. The court exercised its discretion in determining that the jurors should be kept together for an additional day, People v. Johnson, 224 AD2d 635, 639 N.Y.S.2d 407 (2d Dept. 1996), so that the court would have the opportunity to re-instruct the jury.

In the morning the court presented the jury with the following "Allen type" charge:

It is highly desirable that you agree upon a verdict, if you reasonably can.

The case is important to the parties involved, and its presentation has

involved expense to both sides. If you fail to agree upon a verdict, the case

will have to be tried before another jury selected in the same manner as you

were chosen. There is no reason to believe that the case will ever be submitted

to a jury more competent than you.

By pointing out to you the desirability of your reaching a verdict, I am not in [*2]

any way suggesting that you surrender your conscientious convictions about the

truth and about the weight and effect of all the evidence. However, in most

cases, absolute certainty cannot be expected, and each of you must decide the

case for yourselves by examining the questions with candor and frankness. It

is your duty to give careful consideration to the opinion and reasoning of

your fellow jurors, and they must give similar consideration to yours.

After full deliberation and consideration of all of the evidence, it is your

duty to agree upon a verdict, if you can do so without violating your

individual judgment and conscience.

Pattern Jury Instructions, 2d ed., No. 1:100.

After further deliberation, the jury again informed the court that it could not reach a verdict by a note that said:

After further deliberation, the jury still cannot reach a verdict and unanimously

conclude that it will not reach a verdict.

CPLR section 4113(b) states:

Where five-sixths of the jurors constituting a jury cannot agree after

being kept together for as long as is deemed reasonable by the court,

the court shall discharge the jury and direct a new trial before another

jury.

This section of the CPLR vests the trial judge with discretion to determine when the jury has become deadlocked. It provides that when that point is reached, the court must discharge the jury and direct a new trial before another jury. State of New York v. Exxon Corporation, 7 AD3d 926, 777 N.Y.S.2d 539 (3d Dept. 2004).

After four days of deliberations and an Allen type instruction, the jury still could not reach a verdict in this case. At this point, the court believes it would be futile to keep this jury together any longer, and therefore must declare a hung jury and direct a new trial. Slusarczyk v. Slusarczyk, 41 AD2d 593, 340 N.Y.S.2d 250 (4th Dept. 1973).

This constitutes the decision and order of the court.

Dated: May 3, 2005

__________________________

EILEEN N. NADELSON, J.C.C.