| Young Mee Oh v Koon |
| 2016 NY Slip Op 04408 [140 AD3d 861] |
| June 8, 2016 |
| Appellate Division, Second Department |
[*1]
| Young Mee Oh et al., Appellants, v RaymondH. Koon, Respondent. |
Sim & Record, LLP, Bayside, NY (Sang J. Sim of counsel), for appellants.
Mendolia & Stenz, Westbury, NY (Katie A. Walsh and Stephen Murray ofcounsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal froman order of the Supreme Court, Queens County (Butler, J.), entered June 23, 2015, whichdenied their motion pursuant to CPLR 4404 (a) to set aside a jury verdict on the issue ofliability in favor of the defendants and for a new trial on the ground that the verdict wasthe product of juror confusion or as contrary to the weight of the evidence.
Ordered that the order is affirmed, with costs.
Pursuant to CPLR 4404 (a), a trial court has the discretion to set aside a jury verdictand grant a new trial where the verdict is clearly the product of substantial confusionamong the jurors (see Ki TakSong v Oizumi, 120 AD3d 557, 558 [2014]; Ledogar v Forbes, 84 AD3d 749, 751 [2011]; Kevii v Cenname, 21 AD3d1061, 1062 [2005]; Kinney v Taylor, 305 AD2d 466, 467 [2003]). Theconfusion must be apparent from the trial record (see Porter v Milhorat, 26 AD3d 424, 424 [2006];Moisakis v Allied Bldg. Prods. Corp., 265 AD2d 457 [1999]; Wylder vViccari, 138 AD2d 482 [1988]; see also Cortes v Edoo, 228 AD2d 463, 466[1996]).
Absent exceptional circumstances, a juror's affidavit may not be used to attack a juryverdict (see Richards v Forest City Enters., 272 AD2d 462 [2000]; Moisakis vAllied Bldg. Prods. Corp., 265 AD2d at 457). The use of post-discharge juroraffidavits to attack the verdict is "patently improper" where the record is devoid of anyevidence of external influence, juror confusion, or ministerial error in reporting theverdict (Richards v Forest City Enters., 272 AD2d at 463 [internal quotationmarks omitted]; see Hoffman v Domenico Bus Serv., 183 AD2d 807, 808[1992]).
Here, the plaintiffs acknowledged that the jury was properly charged and there wasabsolutely no evidence on the record of any juror confusion regarding any issue related tothe Supreme Court's instructions. It is undisputed that the jurors never requested aread-back of any portion of the court's instructions. Under these circumstances, the use ofjuror affidavits in an attempt to attack the verdict is patently improper (see Richards vForest City Enters., 272 AD2d at 462; Hoffman v Domenico Bus Serv., 183AD2d at 808).
"[A] jury verdict should not be set aside as contrary to the weight of the evidence[*2]unless the jury could not have reached the verdict byany fair interpretation of the evidence" (Corcoran v People's Ambulette Serv.,237 AD2d 402, 403 [1997]; seeCosta v Lopez, 120 AD3d 607, 607 [2014]; Nicastro v Park, 113 AD2d129, 134 [1985]). " 'When a verdict can be reconciled with a reasonable view ofthe evidence, the successful party is entitled to the presumption that the jury adopted thatview' " (Scalogna vOsipov, 117 AD3d 934, 935 [2014], quoting Handwerker v Dominick L. Cervi, Inc., 57 AD3d 615, 616[2008]). "It is for the jury to make determinations as to the credibility of the witnesses,and great deference in this regard is accorded to the jury, which had the opportunity tosee and hear the witnesses" (Scalogna v Osipov, 117 AD3d at 935). "A jury maybelieve or disbelieve the testimony of a witness, or believe portions of the testimony anddisbelieve others" (id.). "A jury's finding that a party was at fault but that suchfault was not a proximate cause of the accident is inconsistent and against the weight ofthe evidence only when the issues are so inextricably interwoven as to make it logicallyimpossible to find negligence without also finding proximate cause" (Garrett v Manaser, 8 AD3d616, 617 [2004]; seeRuggiero v Weth, 122 AD3d 828, 829 [2014]; Almestica v Colon, 12 AD3d627 [2004]).
Here, it cannot be said that the jury's verdict, which found that the defendant wasnegligent but that his negligence was not a substantial factor in causing the accident,could not have been reached on any fair interpretation of the evidence (see Scalognav Osipov, 117 AD3d at 935; Almestica v Colon, 12 AD3d at 627).
Accordingly, the Supreme Court properly denied the plaintiffs' motion pursuant toCPLR 4404 (a) to set aside the jury verdict on the issue of liability and for a new trial onthe ground that it was the product of juror confusion or as contrary to the weight of theevidence. Balkin, J.P., Hall, Miller and LaSalle, JJ., concur.