CPLR R. 4404; Jury Selection

CPLR  R.4404 Post-trial motion for judgment and new trial

Zgrodek v Mcinerney, 2009 NY Slip Op 02524 (App. Div., 3rd, 2009)

Plaintiffs moved pursuant to CPLR 4404 for various alternative relief including setting aside the verdict regarding pain and suffering and loss of consortium, assessing a damage award for such items, or directing a new trial. Supreme Court denied the motion. Plaintiffs appeal.

We find merit in plaintiffs’ argument that Supreme Court placed unduly restrictive time constraints on the questioning of prospective jurors. Over plaintiffs’ objections, both before and after voir dire, the court limited questioning in each round to 15 minutes. While the trial court is accorded discretion in setting time limits for voir dire (see 22 NYCRR 202.33; Horton v Associates in Obstetrics & Gynecology, 229 AD2d 734, 735 [1996] [60 minutes for first round and 30 minutes for subsequent rounds upheld]), the 15 minutes allowed for each round under the circumstances of this case was unreasonably short (see “Implementing New York’s Civil Voir Dire Law and Rules,” http://www.nycourts.gov/publications/pdfs/ImplementingVoirDire 2009.pdf [New York State Unified Court System, Jan. 2009, accessed Feb. 25, 2009], at 6 [stating that “(i)n a routine case a reasonable time period to report on the progress of voir dire is after about two or three hours of actual voir dire”]). This case involved close factual and medical issues, and evidence from several experts was presented at trial. Issues implicated involved, among others, proof regarding four distinct injuries and four surgeries, challenges to causation regarding each injury, the relevance and impact of plaintiff’s preexisting conditions, the weight to be given evidence from several experts with markedly varying opinions, and consideration of appropriate compensation for a variety of asserted injuries. Notwithstanding that liability was not an issue, the case was not simple and straightforward. We cannot conclude from this record that plaintiffs were not prejudiced by the extremely short time permitted for voir dire.

Adding credence to plaintiffs’ first argument is the merit of their next argument, i.e., the jury’s verdict deviated materially from reasonable compensation. Initially, we note as to the reasonable compensation issue that, contrary to defendant’s contention, the issue is properly before us (see Califano v Automotive Rentals, 293 AD2d 436, 437 [2002]; see also Smith v Sheehy, 45 AD3d 670, 671 [2007]). Although “[i]t is well settled that the amount awarded as damages for personal injuries is a factual question for the jury and considerable deference must be accorded to the jury with regard to the interpretation of the evidence . . . and assessments of credibility” (Molter v Gaffney, 273 AD2d 773, 773 [2000] [internal quotation marks and citations omitted]; see Johnson v Grant, 3 AD3d 720, 722 [2004]), nevertheless a jury verdict will generally be considered flawed when a serious injury under the No-Fault Law is found or conceded, but the jury then makes no award for pain and suffering (see Vogel v Cichy, 53 AD3d 877, 880 [2008]; Gillespie v Girard, 301 AD2d 1018, 1018-1019 [2003]; Califano v Automotive Rentals, 293 AD2d at 437; see also Hayes v Byington, 2 AD3d 1468, 1469 [2003]; Ciatto v Lieberman, 1 AD3d 553, 557 [2003]; 8 Weinstein-Korn-Miller, NY Civ Prac ¶ 4404.22). Here, making no award for past pain and suffering after finding that plaintiff sustained a serious injury was a material deviation from reasonable compensation. Moreover, it cannot be discerned from the record which injuries the jury found were related to the accident or which one (or more) they found to be a serious injury. Under such circumstances, and in light of both the previously discussed error in voir dire and the likelihood that the verdict resulted from an impermissible compromise, we conclude that a new trial on all issues (except liability which defendant conceded) is required (cf. Ciatto v Lieberman, 1 AD3d at 557; Califano v Automotive Rentals, 293 AD2d at 436-437).

The bold is mine.

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