| Pagnotta v Diamond |
| 2008 NY Slip Op 04022 [51 AD3d 1099] |
| May 1, 2008 |
| Appellate Division, Third Department |
| Umberto Pagnotta et al., Appellants, v Ronald Diamond,Respondent. |
—[*1] James M. Bryant, Schoharie, for respondent.
Malone Jr., J. Appeals from two judgments of the Supreme Court (Doyle, J.), enteredNovember 28, 2006 in Schoharie County, upon a verdict rendered in favor of defendant.
Plaintiffs and defendant, once friends, own homes near each other in the Town ofRichmondville, Schoharie County. Over the years, plaintiffs filed numerous complaints with theTown Board and state agencies concerning defendant's use of his property, which weredetermined to be unfounded. On July 8, 2004, following a Town Board meeting addressinganother one of plaintiffs' complaints, plaintiffs and defendant became involved in a physicalaltercation. As a result of injuries sustained during the altercation, plaintiffs commenced thisaction against defendant for assault and battery, and sought compensatory as well as punitivedamages. Defendant, in turn, served an answer with counterclaims against plaintiffs for assaultand also sought compensatory and punitive damages. Following a trial, the jury rendered averdict in favor of defendant absolving him of liability to plaintiffs and sustaining hiscounterclaims. The jury awarded him $3,000 in compensatory damages for pain and suffering,$5,000 in punitive damages attributable to the actions of plaintiff Umberto Pagnotta and $2,000in punitive damages attributable to the actions of plaintiff Theresa Pagnotta. Plaintiffssubsequently moved, among other things, to set aside the verdict. Supreme Court denied themotion and plaintiffs now appeal from the judgments rendered upon the jury verdict.
Among their many arguments, plaintiffs contend that Supreme Court erroneously failed [*2]to charge the jury on the burden of proof with respect to defendant'scounterclaims and that this seriously prejudiced the verdict. Plaintiffs concede that thiscontention is unpreserved due to their failure to request such an instruction or to object at trial(see CPLR 4110-b; Curanovic vNew York Cent. Mut. Fire Ins. Co., 22 AD3d 975, 976 [2005]). Nevertheless, "thisCourt may order a new trial in its discretion upon an unpreserved error in a jury instruction whenthat error is fundamental" (Antokol &Coffin v Myers, 30 AD3d 843, 847 [2006]). More particularly, a new trial is warrantedwhere the error is " 'so significant that the jury was prevented from fairly considering the issues attrial' " (Pyptiuk v Kramer, 295 AD2d 768, 771 [2002], quoting Kilburn v Acands,Inc., 187 AD2d 988, 989 [1992]).
In the case at hand, Supreme Court properly instructed the jury on the burden of proof borneby plaintiffs on their causes of action in accordance with the pattern jury instructions (seePJI 1:23). The court neglected, however, to provide a similar instruction regarding the burden ofproof borne by defendant on his counterclaims even though the pattern jury instructions indicatethat such an instruction was appropriate (see NY PJI 1:60, Comment). By failing toprovide an instruction on the burden of proof with respect to defendant's counterclaims, the courteffectively foreclosed the jury from evaluating the evidence in accordance with the proper legalstandard (compare Nestorowich v Ricotta, 97 NY2d 393, 401 [2002]). In view of this,and given the sharply conflicting testimony in which each party claimed that the other initiatedthe altercation, we are of the view that such omission confused the jury and prevented it fromfairly considering the evidence as it related to the parties' respective causes of action.Accordingly, notwithstanding the lack of preservation, we find that a new trial is warranted. Inlight of our disposition, we need not address plaintiffs' remaining claims.
Peters, J.P., Carpinello, Kane and Stein, JJ., concur. Ordered that the judgments are reversed,on the facts, without costs, and matter remitted to the Supreme Court for further proceedings notinconsistent with this Court's decision.