| DeCrescenzo v Gonzalez |
| 2007 NY Slip Op 09720 [46 AD3d 607] |
| December 11, 2007 |
| Appellate Division, Second Department |
| Patrick DeCrescenzo et al., Respondents, v OrlandoGonzalez et al., Appellants. |
—[*1] Heidell, Pittoni, Murphy & Bach, LLP, New York, N.Y. (Daniel S. Ratner of counsel), forappellant St. Vincent's Catholic Medical Center of New York. Kramer, Dillof, Livingston & Moore, New York, N.Y. (Thomas A. Moore and MatthewGaier of counsel), for respondents.
In an action to recover damages for medical malpractice, etc., the defendants OrlandoGonzalez and Orlando Gonzalez, M.D. P.C., appeal, and the defendant St. Vincent's CatholicMedical Center of New York separately appeals, from a judgment of the Supreme Court, KingsCounty (Bayne, J.), dated May 17, 2006, which, (a) upon a jury verdict on the issue of liability,(b) upon a jury verdict on the issue of damages awarding the infant plaintiff the sums of $50,000for future medical care, $40,000 for future medical equipment, $40,000 for future physicaltherapy, $40,000 for future occupational therapy, $40,000 for future psychological therapy,$40,000 for future aide service, $250,000 for past pain and suffering, and $100,000 for futurepain and suffering, (c) upon an order of the same court dated February 28, 2005, granting thatbranch of the plaintiffs' motion which was to correct an error in reporting the jury verdict on theissue of damages to the extent of directing a hearing on the issue of whether the jurors made aministerial error in recording the verdict, (d) upon an order of the same court dated March 11,2005, which, after the hearing, granted that branch of the plaintiffs' motion which was to correctan error in reporting the jury verdict on the issue of damages to reflect the jury's intent to awardthe infant plaintiff the sums of $3,300,000 for future medical care, $2,640,000 for future medicalequipment, $2,000,000 for future [*2]physical therapy,$2,000,000 for future occupational therapy, $2,320,000 for future psychological therapy,$2,000,000 for future aide service, $250,000 for past pain and suffering, and $6,600,000 forfuture pain and suffering, and (e) upon an order of the same court dated July 22, 2005, denyingthose branches of the defendants' separate motions which were, inter alia, to set aside the verdictand for a new trial on the ground that certain improper conduct occurred during the trial, andgranting those branches of the defendants' separate motions which were to set aside the verdict asexcessive to the extent of reducing the award of damages for future medical care from the sum of$3,300,000 to the sum of $180,226, the award of damages for future medical equipment from thesum of $2,640,000 to the sum of $508,872, and the award of damages for future pain andsuffering from the sum of $6,600,00 to the sum of $4,950,000, is in favor of the infant plaintiffand against them in the aggregate sum of $14,209,098.
Ordered that the judgment is reversed, on the law, those branches of the defendants' separatemotions which were to set aside the verdict and for a new trial on the ground that certainimproper conduct occurred during the trial are granted, the order dated June 22, 2005, ismodified accordingly, and the matter is remitted to the Supreme Court, Kings County, for a newtrial before a different justice, with costs to abide the event.
"[A]ll litigants, regardless of the merits of their case, are entitled to a fair trial"(Habenicht v R. K. O. Theatres, 23 AD2d 378, 379 [1965]; see Salzano v City ofNew York, 22 AD2d 656 [1964]). A trial judge should " 'at all times maintain an impartialattitude and exercise a high degree of patience and forebearance' " (Salzano v City of NewYork, 22 AD2d at 657, quoting Buckley v 2570 Broadway Corp., 12 AD2d 473, 473[1960]). A trial judge may not " 'so far inject himself [or herself] into the proceedings that thejury could not review the case in the calm and untrammeled spirit necessary to effect justice' "(Schaffer v Kurpis, 177 AD2d 379, 379 [1991], quoting Kamen Soap Prods. Co. vPrusansky & Prusansky, 11 AD2d 676, 676 [1960]).
Throughout this lengthy and acrimonious trial, the Trial Justice demonstrated a propensity toadmonish the defense counsel at a substantially more frequent rate than she did the plaintiffs'counsel, often admonishing the defense counsel for actions about which she failed to commentwhen committed by the plaintiffs' counsel. She gave the plaintiffs' counsel significantly moreleeway in cross-examining witnesses and in making extraneous comments than she gave thedefense counsel. During the trial and in front of the jury, she gave a gift to the infant plaintiff.Later, also during trial, she gave each jury member a gift when the court recessed for a holidaybreak. Under the circumstances, the defendants were denied a fair trial by virtue of thecumulative effect of the improper conduct of the trial court, and as a result, the jury could nothave considered the issues at trial in a fair, calm, and unprejudiced manner (see Ougourlian v New York City Health &Hosps. Corp., 5 AD3d 644, 645 [2004]; Gentile v Terrace Hgts. Hosp., 57 AD2d585 [1977]; Perkins v New York Racing Assn., 51 AD2d 585 [1976]). Accordingly, anew trial is warranted.
We note that the trial court also erred in granting the plaintiffs' motion to correct an allegedministerial error made by the jury in recording its verdict, based upon the submission ofaffidavits of each juror sworn to more than a week after the verdict was rendered, and uponimproperly holding a hearing to determine whether the affidavits reflected each juror's true intent.Here, although the plaintiffs' counsel allegedly learned from at least two jurors, immediately aftertheir discharge and before they left the courthouse, that they had intended their award of damagesin each category to be on an annual basis, the plaintiffs' counsel did not procure affidavits fromany of the jury members until more than one week later. During that time, the plaintiffs' counsel[*3]obviously communicated with each juror, exposing them to"outside influences of the most prejudicial sort" (Moisakis v Allied Bldg. Prods. Corp.,265 AD2d 457, 458 [1999]). In the interest of protecting against the posttrial harassment ofjurors and the instability of jury verdicts, the trial court should not have altered the jury's verdictunder these unique circumstances (see Moisakis v Allied Bldg. Prods. Corp., 265 AD2dat 457, 458; cf. Smith v Field, 302 AD2d 585 [2003]).
The defendants' remaining contentions are without merit or have been rendered academic inlight of our determination. Prudenti, P.J., Mastro, Santucci and Lifson, JJ., concur.