| Blaine v International Bus. Machs. Corp. |
| 2012 NY Slip Op 00283 [91 AD3d 1175] |
| Jnury 19, 2012 |
| Appellate Division, Third Department |
| Edward Blaine et al., Respondents, v International BusinessMachines Corporation, Appellant. |
—[*1] Faraci Lange, L.L.P., Rochester (Stephen G. Schwartz of counsel) and Levene, Gouldin &Thompson, L.L.P., Vestal (Philip C. Johnson of counsel), for respondents.
McCarthy, J. Appeal from an order of the Supreme Court (Lebous, J.), entered May 3, 2011in Broome County, which denied defendant's motion to change venue.
This is one of nine similar actions alleging that defendant released toxic chemicals from itsmanufacturing facility in the Village of Endicott, Broome County into the environment, therebycontaminating the air and groundwater, causing the plaintiffs in each action to suffer medicalproblems and real estate devaluation, among other things. The complaints are extremely similarand were filed by the same counsel. Discovery, motion practice and trial schedules of all nineactions have been consolidated and handled through case management orders. The parties agreedthat the first trial, scheduled for the fall of 2012, would only address the claims of a limitednumber of plaintiffs. Defendant moved to change venue to one of three neighboring counties onthe basis that an impartial trial could not be held in Broome County (see CPLR 510 [2]).Supreme Court denied that motion without prejudice to renew at the close of voir dire, andsevered the claims of eight individual plaintiffs—the members of two families—tobe heard at [*2]the first trial.[FN1] Defendant appeals the denial of its motion.
We affirm. A trial court's disposition of a discretionary motion for change of venue will notbe disturbed absent an abuse of discretion (see Manchester Tech. v Hansen, 6 AD3d 806, 807 [2004]). Toprevail on the motion here, defendant was required to demonstrate a strong possibility that animpartial trial could not be obtained in Broome County (see Matter of Michiel, 48 AD3d 687, 687 [2008]; Cohen v Bernstein, 9 AD3d 573,574 [2004]; DeBolt v Barbosa, 280 AD2d 821, 824 [2001]). In an effort to make such ademonstration, defendant argued that the jury pool contained a large number of relatives ofplaintiffs in the nine actions, as well as defendant's former employees and their families. Havingconsidered these arguments, we cannot conclude that Supreme Court abused its discretion indenying defendant's motion.
Any relative within six degrees of consanguinity or affinity to a party is automaticallydisqualified from jury service (see CPLR 4110 [b]). Defendant submitted an expert reportfrom a demographer and statistician who determined that there is a 28.6% chance that at least onejuror on a randomly selected jury of six individuals and two alternates from Broome Countywould be related to one of the 943 plaintiffs. A major flaw in this statistic is that juries are notrandomly selected. Jury questionnaires and the voir dire process should filter out relatives anddecrease the chances of empaneling such a person. While we acknowledge that some jurors orparties may not know all of their distant relatives within the sixth degree of consanguinity oraffinity—such as their great-great-grand-nephews—the statistic proffered bydefendant is misleading. Random selection of a jury would include not only those distant andpossibly unknown relatives, but also close relatives—such as parents, children andsiblings—who would almost certainly be known to the parties and potential jurors.Including those close relatives in the calculations skews the statistics, significantly decreasing thereliability of such numbers. On that basis alone, Supreme Court could have found that defendantdid not meet its burden. Thus, the court did not abuse its discretion in denying the motion tochange venue without prejudice to renew.
Additionally, when Supreme Court severed the claims of two families from the remainder ofthe plaintiffs in this action, it created two separate actions (see Kline v Town ofGuilderland, 289 AD2d 741, 742 [2001]), rendering the eight individual members of thosefamilies the only party plaintiffs in the severed action. As CPLR 4110 (b) only disqualifiesrelatives of a "party" to the action from serving on the jury, relatives of the 935 plaintiffs in therelated actions are not automatically disqualified under that subdivision. They may, however, beremoved for bias or favor (see CPLR 4108). The distinction is important. If a relative of aparty within six degrees of consanguinity or affinity is seated on the jury, the verdict can beannulled up to six months after it is rendered, without any need to show prejudice (seeCPLR 4110 [b]; Maiello v Johnson, 18 NY2d 826, 828 [1966]). On the other hand, adistant relative—such as a first cousin twice removed—of a party in one of therelated actions need only be disqualified if he or she is aware that a relative has a pending claimagainst defendant and, as a result, cannot be [*3]impartial, or is insome other way biased. The failure to remove such a person from the jury panel will not result ina mandatory annulment of the verdict (compare CPLR 4110 [b]). Defendant's expertasserted a more than 70% chance of randomly selecting a jury without relatives of any of the 943plaintiffs. Adjusting for the non-random selection of juries and the limited number of partyplaintiffs in the first trial, there would seem to be a high probability of selecting a jury withoutany relatives of a party involved in that trial.[FN2]
Similarly, although 24,000 of defendant's former employees are alleged to be living inBroome County, only persons "in the employ of a party" are specifically listed in the statute assubject to a challenge to the favor from serving as jurors in that trial (see CPLR 4110[a]). The statute does not provide a ground for challenging potential jurors based on a formeremployment relationship. Although former employees or their family members may haveknowledge related to the action, may have an interest in defendant due to a pension or mayotherwise have a bias for or against defendant, such biases may be addressed through acomprehensive juror questionnaire sent to prospective jurors before jury selection and throughthe jury selection process itself (see CPLR 4108). Here, Supreme Court stated that itwould exclude defendant's former employees, as well as residents of the Village of Endicott, whomay be affected by or have preconceived notions about the environmental contamination there.Nevertheless, the potential jury pool contained more than 67,000 people, leaving plenty to choosefrom even with all of the potential disqualifications.[FN3]Thus, the court did not abuse its discretion in denying defendant's motion without prejudice torenew at the close of voir dire, thereby permitting the parties to make a reasonable attempt atselecting an impartial jury (see DeBolt v Barbosa, 280 AD2d at 823-824; see alsoPeople v Smith, 63 NY2d 41, 69 [1984], cert denied 469 US 1227 [1985]).
Peters, J.P., Rose, Kavanagh and Garry, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1: Defendant mentions that,although the parties agreed that only some plaintiffs would be involved in the first trial, no partymoved for severance. Defendant does not, however, challenge Supreme Court's ability to severthe claims of certain parties sua sponte, or the propriety of the severance here (see CPLR603; Marine Midland Bank v Cafferty, 174 AD2d 932, 935 [1991]).
Footnote 2: Previous actions arising fromhighly-publicized toxic torts have been venued in the same county where the environmentalcontamination occurred, most notably the Love Canal actions involving "600 separateunconsolidated actions and approximately 1,400 plaintiffs" in Niagara County (Matter ofLove Canal, 92 AD2d 416, 417 [1983]; see Matter of Love Canal Actions, 161AD2d 1169 [1990]).
Footnote 3: Although defendant emphasizesthat Broome County's qualified jury list contained only 4,592 names, prior to trial moreindividuals could be qualified and more names could be added to the list from the County's totalpool of 67,551 potential jurors.