CPLR § 4106

CPLR § 4106; § 4113(a); and a missing witness

CPLR § 4106 Alternate jurors
CPLR § 4113 Disagreement by jury
(a) Unanimous verdict not required. A verdict may be rendered by not less than five-sixths of the jurors constituting a jury.

Cornell Univ. v Gordon, 2010 NY Slip Op 06394 (App. Div., 1st, 2010)

Inasmuch as defendant fully consented to -— indeed even proposed -— having the two alternate jurors deliberate and render a verdict with the regular jurors, she has failed to preserve her argument that the court committed reversible error in submitting the case to a jury of eight persons rather than six (see Fader v Planned Parenthood of N.Y. City, 278 AD2d 41 [2000]; see also Sharrow v Dick Corp., 86 NY2d 54, 59-60 [1995]; Waldman v Cohen, 125 AD2d 116, 118-124 [1987]). Also unpreserved, for failure to timely object, is defendant's argument that the 6 to 2 jury votes in favor of plaintiffs were contrary to the requirement of CPLR 4113(a) that a verdict must be rendered by not less than five- sixths of the jurors constituting a jury (see Harvey v B & H Rests., Inc., 40 AD3d 241, 241 [*2][2007]). We note, however, with respect to the merits, that while CPLR 4106 requires that alternate jurors be discharged after the final submission of the case, there was no substitution here of the two alternates for regular jurors after deliberations had begun, the circumstance that invalidated the jury deliberations in Gallegos v Elite Model Mgt. Corp. (28 AD3d 50, 54-55 [2005]), and that all eight jurors deliberated as a group from start to finish and reached a verdict together.

We reject defendant's contention that the court erred in giving a missing witness charge due to her failure to testify. While much of the trial indeed focused on the amount of attorneys' fees that would constitute a reasonable award, an issue about which defendant would not likely have had anything meaningful to contribute, the issue of whether attorneys' fees were properly awardable at all was also submitted for the jury's consideration, an issue that turned, at least in part, on the actions that defendant took to have the remaining plumbing violation removed. As plaintiffs' lay witness testified that defendant was not cooperative in producing the documents necessary to certify removal of the plumbing violation, defendant could be expected to dispute those facts or to explain why she
cannot (see Crowder v Wells & Wells Equip., Inc., 11 AD3d 360, 361 [2004]).

You can find a more detailed analysis here.

Jurors: CPLR § 4106 (Alternates) and and CPLR § 4113 (Disagreements)

(b) Procedure where jurors disagree. 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 is the first time 4113 appears on this blog. We are going to throw a party. Huzzah.

Cornell Univ. v Gordon, 2010 NY Slip Op 02072 (App. Div., 1st, 2010)

Plaintiffs, who are defendant's landlord, originally sought attorneys' fees pursuant to a stipulation of settlement that provided for such fees in the event of defendant's noncompliance with the stipulation, and were awarded a money judgment. Inasmuch as $31,434.43 of the judgment on appeal was awarded to compensate plaintiffs for their attorneys' fees incurred in enforcing the money judgment, as opposed to enforcing the stipulation underlying the money judgment, that portion of the jury award amounted to a "fee on a fee" not expressly authorized by the stipulation or by statute, and is therefore not recoverable (see David Z. Inc. v Timur on Fifth Ave., 7 AD3d 257, 258 [2004]; Getty Petroleum Corp. v G.M. Triple S. Corp., 187 AD2d 483, 484 [1992]).

The fee award of $15,000, compensating plaintiffs' attorneys for their efforts to compel defendant's compliance with the term of the stipulation that required defendant, at her sole cost and expense, to remove the final remaining Department of Buildings violation issued against the building because of her unauthorized apartment renovation, was not excessive under the circumstances.

Inasmuch as defendant fully consented to -— indeed even proposed -— having the two alternate jurors deliberate and render a verdict with the regular jurors, she has failed to preserve her argument that the court committed reversible error in submitting the case to a jury of eight persons rather than six (see Fader v Planned Parenthood of N.Y. City, 278 AD2d 41 [2000]; see also Sharrow v Dick Corp., 86 NY2d 54, 59-60 [1995]; Waldman v Cohen, 125 AD2d 116, 118-124 [1987]). Also unpreserved, for failure to timely object, is defendant's argument that the 6 to 2 jury votes in favor of plaintiffs were contrary to the requirement of CPLR 4113(a) that a verdict must be rendered by not less than five-sixths of the jurors constituting a jury (see Harvey v B & H Rests., Inc., 40 AD3d 241, 241 [2007]). We note, however, with respect to the merits, that while [*2]CPLR 4106 requires that alternate jurors be discharged after the final submission of the case, there was no substitution here of the two alternates for regular jurors after deliberations had begun, the circumstance that invalidated the jury deliberations in Gallegos v Elite Model Mgt. Corp. (28 AD3d 50, 54-55 [2005]), and that all eight jurors deliberated as a group from start to finish and reached a verdict together.

We reject defendant's contention that the court erred in giving a missing witness charge due to her failure to testify. While much of the trial indeed focused on the amount of attorneys' fees that would constitute a reasonable award, an issue about which defendant would not likely have had anything meaningful to contribute, the issue of whether attorneys' fees were properly awardable at all was also submitted for the jury's consideration, an issue that turned, at least in part, on the actions that defendant took to have the remaining plumbing violation removed. As plaintiffs' lay witness testified that defendant was not cooperative in producing the documents necessary to certify removal of the plumbing violation, defendant could be expected to dispute those facts or to explain why she cannot (see Crowder v Wells & Wells Equip., Inc., 11 AD3d 360, 361 [2004]).

The bold is mine.

Error to replace a juror where no “evinced bias” is shown: CPLR § 4106

CPLR § 4106 Alternate jurors

Troutman v 957 Nassau Rd., LLC, 2010 NY Slip Op 00836 (App. Div., 2nd, 2010)

After the close of the plaintiffs' case, a juror informed the trial court that she knew one of the witnesses who was going to testify for the defense. The juror explained that she lived in the same neighborhood as the witness, and graduated from high school with her. The juror also indicated that the extent of their relationship was that they would occasionally see each other on the street, say hello, and ask each other how they were doing. The juror then indicated, in response to the court's questioning, that she would "treat" the witness "the same as all other witnesses," and that "nobody . . . started [the] case with an advantage." The court then voiced its "opinion" that the juror was "okay," "seemed like she could be fair," and should "stay."

However, defense counsel then made an application, which the plaintiffs' attorney opposed, for the juror to be replaced with an alternate juror. At that point, the trial court, upon observing that the "trial" was already a "lengthy" one, decided that "the safest course of action" would be to replace the juror with an alternate juror. The court explained that "a lot of times," jurors like the juror in question, who [*2]"know someone" and "say they think they will be okay," end up "hav[ing] a problem when they are making a decision." Hence, the court granted defense counsel's application. However, the court erred in doing so.

CPLR 4106 provides that, in a civil case, if, before the final submission of the case to the jury, a seated juror "dies, or becomes ill, or for any other reason is unable to perform his [or her] duty," the trial court may remove the juror and replace the juror with an alternate juror. This Court, in interpreting the phrase "or for any other reason is unable to perform his [or her] duty" (CPLR 4106), has determined that a seated juror in a civil case may be removed from the jury if he or she "has evinced a certain bias or prejudice against one of the parties" (Mark v Colgate Univ., 53 AD2d 884, 886; see Narvaez v Piccone, 16 AD3d 641, 642; French v Schiavo, 300 AD2d 119, 119-120). Here, however, there was no indication that the juror in question evinced any bias or prejudice against one of the parties. Furthermore, the trial court's concern that such a bias or prejudice might eventually surface was speculative. Under these circumstances, the court should have denied defense counsel's application, and should not have replaced the juror with an alternate juror (cf. Wisholek v Douglas, 280 AD2d 220, 224, revd on other grounds 97 NY2d 740). Therefore, the judgment must be reversed, the complaint reinstated, and the matter remitted for a new trial on the issue of liability.

The bold is mine.