You don't see this rule too often, and rarely in this context. Pretty cool.
CPLR R. 4212 Advisory jury; referee to report.
Jones Inlet Mar., Inc. v Hydraulitall, Inc., 2010 NY Slip Op 02752 (App. Div., 2nd, 2010)
The plaintiff (hereinafter the Marina) commenced this action against
the defendants for breach of contract. In a companion action entitled
Inc. v Jones Inlet Marina, Inc., which was commenced in the Supreme
Court, Suffolk County, under Index No. 14387/04 (hereinafter Action No.
1), and is based upon the same facts as this action, a jury determined
that the Marina breached the subject contract, and that Hydraulitall,
Inc. (hereinafter Hydraulitall), the defendant in this action, was
entitled to damages. The Supreme Court, purportedly relying upon CPLR
4212, treated the jury verdict in Action No.1 as an advisory verdict in
the instant action, and dismissed the Marina's complaint in the instant
action. However, in a companion appeal (see Hydraulitall, Inc. v
Jones Inlet Marina, Inc.,AD3d [decided herewith]), we reversed the
judgment entered in Action No. 1 based upon our conclusion that the
Supreme Court should have granted the Marina's motion, made at the close
of Hydraulitall's case, for judgment as a matter of law dismissing the
complaint in that action for failure to prove damages (id.).
Consequently, we reverse the judgment in the instant action and
reinstate the Marina's complaint.
CPLR 4212 provides:
"Upon the motion of any party as provided in rule 4015
or on its own initiative, the court may submit any issue of fact
required to be decided by the court to an advisory jury or, upon a
showing of some exceptional condition requiring it or in matters of
account, to a [*2]referee to report. An
order under this rule shall specify the issues to be submitted. The
procedures to be followed in the use of an advisory jury shall be the
same as those for a jury selected under article forty-one. Where no
issues remain to be tried, the court shall render decision directing
judgment in the action."
The Supreme Court did not
follow the procedure outlined in the statute since no order was ever
issued and the Supreme Court never specified to the jury the issue to be
decided. Instead, after the jury returned its verdict in Action No.1,
the Supreme Court simply treated that verdict as dispositive of the
instant action. This was error.
Moreover, in light of our determination in Action No. 1 that the
Supreme Court erred in denying the Marina's motion for judgment as a
matter of law for Hydraulitall's failure to make out a prima facie case
with respect to the issue of damages, it would be incongruous to hold
that it was nevertheless proper for the Supreme Court to utilize the
verdict in Action No. 1 as a basis for the dismissal of the complaint in
the instant action, even though the Marina did not expressly challenge,
on the companion appeal, the liability determination in Action No. 1
that it failed to comply with the terms of the contract.