Elzahr v Palladino

[*1] Elzahr v Palladino 2010 NY Slip Op 51210(U) [28 Misc 3d 1207(A)] Decided on July 13, 2010 Civil Court Of The City Of New York, Richmond County Marrazzo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2010
Civil Court of the City of New York, Richmond County

Amira Elzahr and AZIZ ELZAHR, Plaintiff(s),

against

Christopher Palladino, Defendant.



300035-RTS-2010



Edward J. Pavia, Jr., Esq.,

Attorney for Plaiintiff - Amira Elzahr

3309 Richmond Avenue

Staten Island, NY 10312

George Sacco, Esq.,

Purcell & Ingrao

811 Castleton Avenue

Staten Island, NY 10310

Orlando Marrazzo, J.

Plaintiff moves for an order vacating the jury verdict after trial in defendant's favor that dismissed the complaint, and found zero liability on defendant's part. As is set forth below, plaintiff's motion is denied in its entirety.

On March 29, 2010, at the conclusion of the trial in this action, the jury unanimously announced its verdict to the court by answering question number 1 on the verdict sheet, "Was the defendant Christopher Palladino negligent?", with an answer of "no." Plaintiff's counsel moments after the jury was discharged spoke with juror number 6, [*2]Marvin Coaker, and juror number 5, Russell Benedetto, and asked them about their impressions of the case. During that conversation both Coaker and Benedetto allegedly told plaintiff's counsel that it was their intent to attribute fault to both the plaintiff and to the defendant. However, they were confused about the verdict sheet. Plaintiff's counsel alleges that Mr. Coaker and Mr. Benedetto indicated to him that despite the fact that they thought that both parties were negligent, they answered question number 1 "no" because they thought that by answering "yes" it would mean that they were finding the defendant completely at fault.

After plaintiff's counsel had his conversation with Mr. Coaker and Mr. Benedetto he immediately reported the substance of the conversation to the court. The court thereafter telephoned defendant's counsel who returned to the courthouse, and in the presence of the court, plaintiff's counsel on the record made a statement summarizing his conversation with Mr. Coaker and Mr. Benedetto.

Plaintiff has attached to his motion affidavits of Mr. Coaker and Mr. Benedetto. In their respective affidavits, both Mr. Coaker and Mr. Benedetto aver that they both were confused by the verdict sheet, and that they each intended to find both the plaintiff and the defendant negligent and to apportion liability between them. Plaintiff has also attached a third affidavit from the foreperson of the jury, Jane Collura-Cambria. Ms. Collura-Cambria in her affidavit swears that she also intended to find both parties negligent, but through answering the first question on the verdict questioner "yes" she would be finding the defendant completely at fault which was not her intention.

Pursuant to CPLR 4404(a), a trial court, "may set aside a verdict ... and direct that judgment be entered in favor of a party entitled to judgment as a matter of law."

In considering such a motion, " ‘the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant' " (Hand v Field, 15 AD3d 542, 543 [App Div, 2nd Dept, 2005]; quoting Szczerbiak v. Pilat, 90 NY2d 553, 556 [1997].)

It is well settled that, a trial court may set aside a jury verdict as unsupported by legally sufficient evidence only if there is " ‘simply no valid line of reasoning and permissible inferences which could possibly lead rational [individuals] to the conclusion reached by the jury on the basis of the evidence presented at trial (Soto v New York City Tr. Auth., 6 NY3d 487, 492 [2006] quoting Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]; Acosta v City of New York, 72 AD3d 624 [App Div, 2nd Dept, 2010].)

Ordinarily, jurors may not impeach their verdict once they are discharged (see Hersh [*3]v New York City Tr. Auth., 290 AD2d 258, 259 [App Div, 1st Dept, 2002].) In two limited circumstances, courts have permitted the use of juror affidavits to impeach a verdict (see generally Moisakis v Allied Bldg. Prods. Corp., 265 AD2d 457 [App Div, 2nd Dept, 1999], lv. denied 95 NY2d 752 [2000]; see also Hersh, at., 290 AD2d 258.)

The first exception is where the affidavits demonstrate that a ministerial error occurred in the jury's reporting of the verdict, yet the alleged error may not concern issues of how the jury's verdict was reached (see generally Moisakis, 265 AD2d 457).

The second exception to the rule prohibiting juror impeachment of a verdict mandates proof, on the trial record, evidencing a basis for finding juror confusion (Wingate v Long Island Railroad 92 AD2d 797 [App Div, 1st Dept, 1983].)

Here, there were no objections raised as to the jury charge, jury verdict sheet and jury verdict (see generally Arizmendi v City of New York, 56 NY2d 753 [1982]; Barry v. Manglass, 55 NY2d 803 [1981]; Breen-Burns v Scarsdale Woods Homeowners Asso., Inc., [App Div, 1st Dept, 2010].) In matter of fact, the court had a pre-charge conference with plaintiff's counsel and defendant's counsel and the attorneys settled on the language that was used in the jury questioner. Moreover, the jury immediately after rendering its verdict was polled and each and every jury member affirmed their verdict. Additionally, the jury verdict sheet itself, including the jury findings entered thereon, did not reflect any inconsistent or factually unsupported findings. On the face of the trial record, there was no evidence of jury confusion. As such, given the instant circumstances, the 3 (three) juror affidavits submitted by plaintiff on its motion, both of which were produced subsequent to the discharge of the jury, could not be relied upon to impeach the juries verdict in favor of the defendant herein (see Moisakis, 265 AD2d at 458; cf. Hersh, 290 AD2d 258).

Contrary to the plaintiff's contention, this court viewing the facts in the light most favorable to the plaintiff herein, sees no valid line of reasoning and permissible inferences which could possibly have led rational individuals to conclude, based upon the evidence presented, that the defendants were liable. In sum, the plaintiff's version of the events was not, "contrary to common experience, requiring defendant's testimony to be disregarded as being without evidentiary value (Cruz v New York City Tr. Auth., 31 AD3d 688, 690 [App Div, 2nd Dept, 2006]; affd. 8 NY3d 825, 828 [2007].)

The court notes that the defendant's verdict herein could not be impeached on basis of juror confusion, where there were no objections raised by plaintiff's counsel as to jury charge, jury verdict sheet. The jury was polled and affirmed their verdict, and jury verdict sheet itself, including jury findings entered thereon, did not reflect any [*4]inconsistent or factually unsupported findings. The court emphasizes that the jury verdict sheets had the blessings of both the plaintiff' counsel as well as the defendant's counsel.

Accordingly, plaintiff's motion to vacate the jury verdict after trial in defendants favor is denied.

This constitutes the trial order and decision of the court.

Dated: July 13, 2010

Staten Island, New York

_________________

Orlando Marrazzo, Jr.,

Judge, Civil Court

ASN by__________in Court