Pirrello v Aldallah

[*1] Pirrello v Aldallah 2010 NY Slip Op 51204(U) [28 Misc 3d 1207(A)] Decided on July 12, 2010 Supreme Court, Kings County Battaglia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 12, 2010
Supreme Court, Kings County

Raymond Pirrello, Plaintiff,

against

Mahmoude Aldallah and Polina Hacking Corp., Defendants.



6038/06



Plaintiff Raymond Pirrello was represented by Lawrence P. Biondi, Esq.

Defendants Mahmoude Aldallah and Polina Hacking Corp. were represented by John A. Corring, Esq. of Russo, Keane & Toner, LLP.

Jack M. Battaglia, J.

In the early morning hours of July 16, 2005, while crossing West 23rd Street near its intersection with 7th Avenue, plaintiff Raymond Pirrello was struck by a motor vehicle owned by defendant Polina Hacking Corp. and operated by defendant Mahmoude Aldallah. A jury having reached a verdict after the liability phase of a bifurcated trial, Plaintiff now moves for an order, pursuant to CPLR 4404 (a), setting aside the jury's verdict and directing a new trial.

Completing a Verdict Sheet with the standard five interrogatories in cases of this type, the jury initially determined that defendant Mahmoude Aldallah was negligent, but that his negligence was not a substantial factor in bringing about the accident. The Verdict Sheet directed the jury that, if it answered "no" to the "substantial factor" question, it was to proceed no further and notify the Court Officer. The jury did not follow the direction, and instead proceeded to determine that Plaintiff was negligent, that his negligence was a substantial factor in bringing about the accident, that Defendant was 21% at fault, and that Plaintiff was 79% at fault. Although not entered, the jury's initial determination will be referred to as its "First Verdict."

After discussion among the Court and counsel, it was agreed that, without any party waiving any position with respect to the First Verdict, the jury would be reinstructed and asked to reconsider. After requesting a "read back . . . the legal definition of substantial factor . . . only for the driver of a car" (Jury Note, Court Exhibit V,) the jury delivered what will be referred to as its "Second Verdict." The jury now determined that both defendant Aldallah and Plaintiff were negligent, that the negligence of each was a substantial factor in bringing about the accident, that [*2]Defendant was 10% at fault, and that Plaintiff was 90% at fault.

With respect to the First Verdict, all six jurors agreed that both defendant Aldallah and Plaintiff were negligent, and that the appropriate allocation of fault was 21%/79%. Only five jurors agreed that the Defendant's negligence was not a substantial factor, but that Plaintiff's negligence was; Juror 5 was the dissenter. With respect to the Second Verdict, all six jurors again agreed that defendant Aldallah and Plaintiff were negligent, but Juror 6 dissented from the determination that the Defendant's negligence was a substantial factor, and Juror 5 again dissented from the determination that Plaintiff's negligence was a substantial factor. Also, whereas all jurors had agreed to the 21%/79% allocation of fault in the First Verdict, Juror 5 dissented from the 10%/90% allocation of fault in the Second Verdict.

After discussion among the Court and counsel, it was agreed that the jury would be discharged; that counsel would submit written argument on any motion directed to the First or Second Verdict or both; and that a new jury would be selected to either consider damages or reconsider liability.

CPLR 4404 (a) provides that "the court may set aside a verdict . . . and . . . may order a new trial of a cause of action . . . where the verdict is contrary to the weight of the evidence, [or] in the interest of justice." No party now contends that any part of either the First Verdict or the Second Verdict is "contrary to the weight of the evidence." Specifically, Plaintiff does not now contend that the jury's determination in its First Verdict that defendant Aldallah's negligence was not a substantial factor in bringing about the accident, or its allocation of fault in the First or Second Verdict or both, "could not have been reached on any fair interpretation of the evidence'." (See Amaral v Reph, 70 AD3d 613, 614 [2d Dept 2010] [quoting Nicastro v Park, 113 AD2d 129, 134 (2d Dept 1985)].)

Rather, Plaintiff contends that "[t]he verdicts were inconsistent and the product of jury confusion." (Affirmation in Support, ¶ 3.) Acknowledging that, "[i]f the jury were to return the second verdict merely changing its answer on question number 2 that the defendant's negligence was a substantial factor in bringing about the accident and keeping the same percentages, a strong argument could be made that the second verdict should stand" (id., ¶ 5), Plaintiff contends that "[t]here is no rational reason why the jury changed the percentages of fault and there is no way for the parties or this Court to know what the real verdict is herein" (id., ¶ 4.) Although agreeing that the First Verdict was inconsistent, Defendants maintain that "the jury had time to reconsider its inconsistent verdict and returned with a verdict that was not only consistent but also clearly reasonable in light of the testimony." (Affirmation in Opposition, ¶ 6.)

In other words, the parties agree, at least for purposes of Plaintiff's motion, that, examined separately and within their respective pages, both the First Verdict and the Second Verdict are consistent. The parties differ, however, on whether the two verdicts may be compared for "consistency," and whether the change in the allocation of fault constitutes "inconsistency," or otherwise demonstrates substantial jury confusion. Specifically, the jury allocated a lower [*3]percentage of fault to defendant Aldallah (10%) after its determination that his negligence was a substantial factor in bringing about the accident than it had allocated to him (21%) when it had determined that his negligence was not a substantial factor.

The use of "inconsistency" to police jury verdicts appears more to involve a judgment about process than about logic. Although a jury's finding that a party was negligent but that the negligence was not a substantial factor in bringing about an accident may be labeled as "inconsistent" (see Amaral v Reph, 70 AD3d at 714; Ahr v Karolewski, 32 AD3d 805, 806-07 [2d Dept 2006]; Jones v Radeker, 32 AD3d 494, 495-96 [2d Dept 2006]), the inquiry is whether the verdict is "against the weight of the evidence," not supported by a "fair interpretation of the evidence" (see Amaral v Reph, 70 AD3d at 714; Ahr v Karolewski, 32 AD3d at 806-07; Jones v Radeker, 32 AD3d at 495.)

Similarly, to say that there is an "internal inconsistency" in a jury's finding that a party's negligence was not the proximate cause of an accident where the jury also allocated fault to that party (see Cortes v Edoo, 228 AD2d 463, 465 [2d Dept 1996]) cannot be primarily explained by logic, since it would seem perfectly logical for a jury to conclude on the circumstances that 2% is not "substantial."

In any event, the caselaw is clear that, faced with a verdict that ascribes fault to a party whom the jury has determined not to have substantially contributed to the happening of an accident, a court "must direct either reconsideration by the jury or a new trial" (see Palmer v Walters, 29 AD3d 552, 553 [2d Dept 2006]; see also Kevii v Cenname, 21 AD3d 1061, 1062 [2d Dept 2005]; Clarke v Order of the Sisters of St. Dominic, 273 AD2d 431, 432-33 [2d Dept 2000]; Cortes v Edoo, 228 AD2d at 465.) The court should not direct reconsideration, however, without also reinstructing the jury. (See Roberts v County of Westchester, 278 AD2d 216, 217 [2d Dept 2000]; Cortes v Edoo, 228 AD2d at 465.)

"On reconsideration, the jury [is] free to substantially alter its original statement so as to conform to its real intention'." (See Ryan v Orange County Fair Speedway, 227 AD2d 609, 611 [2d Dept 1996] [quoting Bernard v Seyopp Corp., 11 AD2d 140, 141 (1st Dept 1960), aff'd 9 NY2d 676 (1961)]; see also Warner v New York Cent. R.R. Co., 52 NY 437, 440 [1873]; Palmer v Walters, 29 AD3d at 553; Mateo v Post Ave. Assocs., 12 AD3d 205, 206 [1st Dept 2004]; Pam v Emmanuel, 307 AD2d 345, 346 [2d Dept 2003].) Thus, on reconsideration the jury might appropriately change its determination on "substantial factor" from "no" to "yes," maintaining the allocation of fault (see Palmer v Walters, 29 AD3d at 552-553); or it might maintain its initial negative determination as to "substantial factor" and delete its allocation of fault (see Nath v Brown, 48 AD3d 1166, 1167 [4th Dept 2008]; see also Mateo v 83 Post Ave. Assocs., 12 AD3d at 206.)

But "[e]ven after consideration, a trial court has discretion to set aside a verdict which is clearly the product of substantial confusion among the jurors'." (See Palmer v Walters, 29 AD3d at [*4]553 [quoting Roberts v County of Westchester, 278 AD2d at 217].) Juror confusion might be indicated by requests for reinstruction on an issue, like proximate cause/substantial factor. (See Cortes v Edoo, 228 AD2d at 466; see also Clarke v Order of the Sisters of St. Dominic, 273 AD2d at 432-33 ["jurors had previously expressed difficulty in comprehending the concept of proximate cause"]; DePasquale v Morbark Indus., 254 AD2d 450, 450 [2d Dept 1998] ["notes from the jury during its deliberations evidenced persistent confusion on the issue of causation' "].)

Here, the jury not only changed its initial determination on "substantial factor" as to defendant Aldallah from "no" to "yes," it changed its initial allocation of fault from 21% Defendant/79% Plaintiff to 10% Defendant/90% Plaintiff. Had the Second Verdict not been internally inconsistent, as it was, a new trial would certainly be required. (See Roberts v County of Westchester, 278 AD2d at 217 [55%/45% allocation of fault changed to 90%/10%, without change to "substantial factor"].) But, not only is the Second Verdict internally consistent, in its essential aspects it is consistent with the First Verdict. Both Verdicts reveal jury determinations that both Plaintiff and defendant Aldallah were negligent, and that Plaintiff was in some sense "more negligent." Despite the jury's request to be reinstructed as to "substantial factor" during its second round of deliberations, there is no evidence that the Second Verdict was the product of substantial juror confusion rather than continued negotiation.

Indeed, the collective change-of-mind that resulted from the continued negotiation is evident from a comparison of the two Verdict Sheets, including, most notably, the respective positions of Juror 5 and Juror 6. The Court has seen nothing in the caselaw to suggest that the juror's "free[dom] to substantially alter its original statement to conform to its real intention" (see Ryan v Orange County Fair Speedway, 227 AD2d at 611 [internal quotation marks and citation omitted]) does not extend to product of negotiation rather than new-found enlightenment.

Plaintiff's motion is, therefore, denied. The parties shall appear in the Jury Coordinating Part on August 9, 2010 to select a jury for the damages phase of the trial.

July 12, 2010____________________

Jack M. Battaglia

Justice, Supreme Court