| Boothe v Manhattan & Bronx Surface Tr. Operating Auth. |
| 2009 NY Slip Op 09162 [68 AD3d 513] |
| December 10, 2009 |
| Appellate Division, First Department |
| Marva Boothe, Respondent-Appellant, v Manhattan andBronx Surface Transit Operating Authority et al., Appellants-Respondents, et al.,Defendants. |
—[*1] Law Offices of Edmond J. Pryor, Bronx (William C. Clyne of counsel), forrespondent-appellant.
Judgment, Supreme Court, Bronx County (Yvonne Gonzalez, J., and a jury), entered on orabout September 18, 2008, in an action for personal injuries sustained in a collision between apublic bus and a cab in which plaintiff was a passenger, in favor of plaintiff and againstdefendants, and bringing up for review an order denying the Manhattan and Bronx SurfaceTransit Operating Authority (MABSTOA) defendants' motion to set aside the verdict,unanimously reversed, on the law, without costs, the motion granted, and the matter remandedfor a new trial on the question of liability, and the damage award reinstated.
In the course of deliberations, the jury advised the trial court that it had finished itsdeliberations and reached a verdict. In fact, it had failed to respond to two of the specialinterrogatories in support of a general verdict; one concerning whether the bus driver'snegligence was a substantial factor in causing the accident, and the other apportioning faultamong defendants. Without fully informing counsel of the specific omissions and withoutmaking a record, the court directed the jury to complete the verdict sheet. The jury then returneda verdict against both sets of defendants, apportioning fault 40% against the MABSTOAdefendants, who appeal. Although not mandated by statute in civil proceedings, the rationale forthe requirement in criminal proceedings that counsel be given an opportunity to be heard whenthe jury requests additional information or instruction (see People v O'Rama, 78 NY2d270, 276-277 [1991] [such opportunity is essential to counsel's ability to represent client's bestinterests and protect client's constitutional and statutory rights at critical postsubmissionproceedings that may well be determinative of the outcome]) is no less applicable to civilproceedings where there is indication of jury confusion (see Cortes v Edoo, 228 AD2d463, 466 [1996]). Here, although the jury did not specifically request additional information orinstruction, it returned a verdict which disregarded clear instructions on the verdict sheet. Byfailing to provide counsel with an opportunity to be heard, the court may have inadvertentlyinfluenced the verdict. Counsel should have been afforded the opportunity to request that thecourt adopt a different course, such as [*2]making further inquiryof the jury or repeating the court's charge on substantial factor. Since there is no transcript of thecourt's comments to the jury, it cannot be determined whether such comments may haveinfluenced the verdict.
Finally, we find no grounds to reduce the jury award on damages and reinstate that verdictsubject to the new trial on liability. Concur—Mazzarelli, J.P., Andrias, Saxe, Cattersonand Acosta, JJ.