| Ki Tak Song v Oizumi |
| 2014 NY Slip Op 05775 [120 AD3d 557] |
| August 13, 2014 |
| Appellate Division, Second Department |
[*1]
| Ki Tak Song, Appellant, v Daniel Oizumi et al.,Respondents. |
Sim & Park, LLP, New York, N.Y. (Haesun Alexis Kim of counsel), forappellant.
O'Connor, McGuinness, Conte, Doyle, Oleson, Watson & Loftus, LLP, WhitePlains, N.Y. (Montgomery L. Effinger of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from ajudgment of the Supreme Court, Kings County (Bayne, J.), entered June 7, 2012, which,upon a jury verdict in favor of the defendants and against him, dismissed thecomplaint.
Ordered that the judgment is reversed, on the law, with costs, the complaint isreinstated, and the matter is remitted to the Supreme Court, Kings County, for a newtrial.
The plaintiff allegedly was injured when the vehicle which he was driving was struckin the rear by a vehicle owned by the defendant Yoko Oizumi and driven by thedefendant Daniel Oizumi. After a trial, the jury returned a verdict finding that, while thedefendants were negligent, their negligence was not a substantial factor in causing theaccident.
After the jury was discharged, the court informed the parties that the verdict read intothe record was based on a second copy of the verdict sheet that the court had given to thejury. The court told the parties that it provided the jury with the second copy after thecourt was told by a court officer that the jury had made a mistake. The court explained tothe parties that the jury was "scratching out on the first page." The court informed theparties that it had directed the court officer to let the members of the jury "all initial what[sic] mistake they made" and gave the court officer a new verdict sheet to give to thejury. Prior to doing so, the court did not convene the jury. Instead, without advisingcounsel or otherwise seeking counsels' input as to the procedures to be employed, thecourt conveyed instructions to the jury through the court officer, who delivered thesecond copy of the verdict sheet to the jury.
The plaintiff appeals, contending, in effect, that the judgment should be reversed asthe first verdict sheet evidences that the verdict upon which the judgment was grantedwas the product of jury confusion and is inherently inconsistent as a matter of law. Weagree and remit the matter to the Supreme Court, Kings County, for a new trial.
As an initial matter, the defendants' contention that the plaintiff failed to preserve forappellate review his argument that the jury's verdict was inconsistent is without merit, asthe court failed to inform counsel as to the problems with the first verdict sheet prior tothe close of the trial [*2]and the jury being discharged(cf. Bodge v Red Hook SeniorHous. Dev. Fund Co., Inc., 85 AD3d 1073, 1074 [2011]).
Contrary to the court's description, the record also shows that the first verdict sheetcontains more than just a "scratching out" on the first page. Rather, in connection withquestion number one, "Were the defendants negligent?" there is a handwritten "x" next tothe response "Yes" and a handwritten check mark that is crossed out next to the response"No." In addition, each juror's initials appear next to that crossed out check mark. Also,below those responses there appears to be a crossed out signature on one of the sixsignature lines; no other signature appears. Neither the jurors' initials nor their signaturesappear anywhere else on the verdict sheet. However, there are responses to each of thenext several questions. With respect to question number two, "Was the negligence of thedefendants a substantial factor in causing the accident?" there is a handwritten "x" next tothe response "No." Although the verdict sheet indicates that, if the members of the juryanswered "no," to this question, their deliberations should end, the next three questionscontain handwritten responses including question number five, which states, "State thepercent of negligence attributed to each party." The handwritten response allocates 20%of the fault for the happening of the accident to the defendants despite the earlierresponse that the defendants' negligence was not a substantial factor in causing theaccident (see Palmer vWalters, 29 AD3d 552, 553 [2006]; Cortes v Edoo, 228 AD2d 463,465-466 [1996]).
Although the jury's second verdict sheet was internally consistent (see Palmer vWalters, 29 AD3d at 553), the first verdict sheet indicates that the jury may havebeen confused as to the meanings of "substantial factor" and "fault" (id.). Thecourt erred in failing to either direct reconsideration by the jury before providing thesecond verdict sheet to them or to direct a new trial (see CPLR 4111 [c];Palmer v Walters, 29 AD3d at 553; Ledogar v Forbes, 84 AD3d 749, 751 [2011]; Cortes vEdoo, 228 AD2d at 465-466) as there is no evidence that the jury exercised its rightto " 'substantively alter its original [verdict] so as to conform to its realintention' " (Palmer v Walters, 29 AD3d at 553, quoting Ryan vOrange County Fair Speedway, 227 AD2d 609, 611 [1996]). Even if the parties hadknown of, or consented to, the court's instruction to the members of the jury, via thecourt officer, to initial their mistake on the first verdict sheet (see e.g. Boothe v Manhattan& Bronx Surface Tr. Operating Auth., 68 AD3d 513, 513-514 [2009]), themembers of the jury initialed neither their response of "no" to the question regardingwhether the defendants' negligence was a substantial factor in causing the accident northeir response allocating 20% of the fault for the happening of the accident to thedefendants (see Palmer v Walters, 29 AD3d at 553). As the record does notevidence that the members of the jury recognized the inconsistency in their responses onthe first verdict sheet, the court erred in failing to direct the jury to reconsider its originalverdict before giving the second verdict sheet to the jury.
Accordingly, the judgment must be reversed and a new trial ordered.
In view of our determination, we do not reach the plaintiff's remaining contentionthat the verdict was against the weight of the evidence. Skelos, J.P., Chambers, Duffyand LaSalle, JJ., concur.