| Holstein v Community Gen. Hosp. of Greater Syracuse |
| 2011 NY Slip Op 05746 [86 AD3d 911] |
| July 1, 2011 |
| Appellate Division, Fourth Department |
| Tina M. Holstein, Respondent, v Community General Hospital ofGreater Syracuse, Appellant. |
—[*1] Defrancisco & Falgiatano Law Firm, Syracuse (Jeff D. Defrancisco of counsel), forplaintiff-respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (James P. Murphy, J.),entered June 24, 2010 in a medical malpractice action. The judgment, entered upon a juryverdict, awarded plaintiff the sum of $1,690,000 with interest.
It is hereby ordered that the judgment so appealed from is affirmed without costs.
Memorandum: Plaintiff commenced this medical malpractice action seeking damages forinjuries she sustained based on the negligence of defendant's employee. We reject defendant'scontention that Supreme Court erred in denying its motion to set aside the jury verdict and for anew trial pursuant to CPLR 4404 (a). Contrary to defendant's contention, we conclude that theverdict is not against the weight of the evidence, inasmuch as the evidence did not " 'sopreponderate[ ] in favor of the [defendant] that [the verdict] could not have been reached on anyfair interpretation of the evidence' " (Lifson v City of Syracuse [appeal No. 2], 72 AD3d1523, 1524 [2010]; see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]). Indeed,the "trial was a prototypical battle of the experts, and the jury's acceptance of [plaintiff's] casewas a rational and fair interpretation of the evidence" (Lillis v D'Souza, 174 AD2d 976,977 [1991], lv denied 78 NY2d 858 [1991]; see Winiarski v Harris [appeal No.2], 78 AD3d 1556, 1557 [2010]). We reject defendant's further contention that the jury's award ofcompensatory damages "deviate[d] materially from what would be reasonable compensation"(CPLR 5501 [c]; see generally Schmitt v Werner Enters., 277 AD2d 1003 [2000]).
We further conclude that defendant waived his contention that a new trial is warranted basedupon the failure of the court to poll the jury. Following the jury's announcement of the verdict,defense counsel "ask[ed] that the jury be polled," to which the court responded, "Jury be polled,they have signed. They each have individually signed." Defense counsel then stated, "Okay. Allright. Thank you," following which the court excused the jury. We cannot conclude that theequivocal comment by the court constituted a ruling on defense counsel's request. This case isdistinguishable from Duffy v Vogel(12 NY3d 169, 172 [2009]), where the request to poll the jury was explicitly "denied as'unnecessary[,]' and the jury [was] discharged." Rather, here, defense counsel was afforded anopportunity to clarify her request prior to the jury being discharged[*2]"and[,] when [defense] counsel immediately abandoned thesubject[,] the court might well have assumed that [defense] counsel acquiesced that the pollingwas unnecessary" (Farhart v Matuljak, 283 App Div 977, 978 [1954]). Inasmuch asdefense counsel failed to indicate "that [she] nevertheless . . . wished [to have] thejury polled[ ] or [to] ask[ ] for a definite ruling" (id.), we conclude that defense counselfailed to make her "position sufficiently clear to the court to make the question available uponappeal" (id.).
All concur except Scudder, P.J., and Martoche, J., who dissent and vote to reverse inaccordance with the following memorandum.
Scudder, P.J., and Martoche, J. (dissenting). We respectfully dissent inasmuch as we agreewith defendant that a new trial is warranted based upon the failure of Supreme Court to poll thejury. There is no question that defense counsel unequivocally requested that the jury be polledand, in our view, the court had an absolute duty to rule on that request. In response to defensecounsel's request, the court stated, "Jury be polled, they have signed. They have each individuallysigned." Defense counsel thereafter responded, "Okay. All right. Thank you." We conclude that itwas unnecessary for defense counsel to make a formal exception to the ruling of the court(see CPLR 4017). Even if we were to agree with the majority that the court's response tothe request of defense counsel was equivocal, we cannot conclude that defendant waived hiscontention based on the subsequent response of defense counsel. A party has an absolute right tohave the jury polled and that right exists unless the party " 'has expressly agreed to waive thatright' " (Duffy v Vogel, 12 NY3d169, 174 [2009]). Any ambiguity in the court's response should not be held against defensecounsel, and her statement does not constitute a clear and express abandonment of her originalrequest. Thus, we view the exchange between defense counsel and the court as ambiguous atbest, and we resolve the ambiguity in favor of defense counsel, who made a clear and directrequest to have the jury polled. We would therefore reverse the judgment, grant defendant'spost-trial motion, set aside the verdict and grant a new trial. Present—Scudder, P.J.,Centra, Peradotto, Gorski and Martoche, JJ.