Choudhry v Khanijoun

[*1] Choudhry v Khanijoun 2017 NY Slip Op 50524(U) Decided on March 24, 2017 Supreme Court, Queens County Modica, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 24, 2017
Supreme Court, Queens County

Jitin Choudhry, Plaintiff,

against

Arvinder Khanijoun, Defendant.



15175/2013



For Plaintiff: Law Office of Ami Morgenstern, 40-17 Broadway, LIC, NY 11103-0223

For Defendant: Law Offices of Frank J. Laurino, 999 Stewart Avenue, Bethpage, NY 11714-3551
Salvatore J. Modica, J.

In the summary jury trial, the jury's verdict sheet, received as Court Exhibit VI, found, in response to three separate questions concerning "serious injury," that plaintiff did not sustain a serious injury. The jurors, despite the express instructions on the jury verdict sheet, did not stop after question 8 - - the last of the three questions concerning "serious injury." Instead, in response to question 9, the jury awarded the plaintiff the sum of $8,000.00.

The plaintiff moves to set aside the verdict and for other relief. The defendant cross moves to set aside the jury award of $8,000.

The Appellate Division, First Department, in Conrad v. Alicea, 117 AD3d 560 (2014), stated:

Plaintiff's motion seeking to set aside the jury verdict on the issue of damages as "inconsistent and in the interest of justice," pursuant to CPLR 4404 (a), in substance seeks to set aside the verdict as inadequate and/or against the weight of the evidence (see Hernandez v Columbus Ctr., LLC, 50 AD3d 597 [1st Dept 2008]), and is thus precluded by the summary jury trial rules stipulated to by the parties. In consenting to the rules of this alternative dispute resolution forum, plaintiff specifically agreed to waive motions to set aside the verdict or judgment rendered by the jury, and waived any appeals, in order to quickly resolve the instant dispute. We therefore dismiss the appeal.

[*2]Conrad v. Alicea, 117 AD3d 560, supra.

The plaintiff failed to timely object or protest the jury verdict at the time that it was rendered. Such failure to object operates as a waiver. As a result, the Court is constrained to deny the plaintiff's motion to set aside the verdict or for other relief. See, Conrad v. Alicea, 117 AD3d 560 (1st Dept. 2014).

The Court, moreover, grants the cross motion to vacate the jury's award of $8,000. In making such award, the jury violated the Court's express directions and explicit instructions after question 8 that they were to stop at that point on the jury verdict sheet and report to the Court. Since the jury breached the Court's clear instructions, the jury award of $8,000 was a nullity, in response to question 9, was a nullity and, therefore, must be vacated.

The foregoing constitutes the decision, order, and opinion of the Court.

Dated: March 24, 2017

Jamaica, New York

Honorable Salvatore J. Modica

J.S.C.