Caldwell v. N.Y.C. Transit Auth.

• Decision Date: 29 December 2021
• Docket Number: 2019–04372,Index No. 10012/14
• Citation: 203 A.D.3d 6,161 N.Y.S.3d 179
• Parties: Shana CALDWELL, respondent, v. NEW YORK CITY TRANSIT AUTHORITY, et al., appellants.
• Court: New York Supreme Court — Appellate Division

203 A.D.3d 6

161 N.Y.S.3d 179

Shana CALDWELL, respondent,

v.NEW YORK CITY TRANSIT AUTHORITY, et al., appellants.

2019–04372

Index No. 10012/14

Supreme Court, Appellate Division, Second Department, New York.

Argued—June 14, 2021

December 29, 2021

Anna J. Ervolina, Brooklyn, NY (Timothy J. O'Shaughnessy of counsel; Lawrence Heisler, former of counsel on the brief), for appellants.

Subin Associates, LLP, New York, NY (Herbert Subin and Pollack, Pollack, Isaac & DeCicco, LLP [Brian J. Isaac ], of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, BETSY BARROS, ANGELA G. IANNACCI, JJ.

OPINION & ORDER

BARROS, J.

I.

On this appeal, we address whether the 2013 amendments to CPLR 4106, which changed the statute to allow trial courts to substitute a regular juror with an alternate juror even after deliberations have begun, may be reconciled with the constitutional right to a trial by a six-member jury wherein each juror deliberates on all issues (see N.Y. Const, art I, § 2 ; Sharrow v. Dick Corp., 86 N.Y.2d 54, 629 N.Y.S.2d 980, 653 N.E.2d 1150 ; Arizmendi v. City of New York, 56 N.Y.2d 753, 452 N.Y.S.2d 15, 437 N.E.2d 274 ; Schabe v. Hampton Bays Union Free School Dist., 103 A.D.2d 418, 427–428, 480 N.Y.S.2d 328 ). We hold that to reconcile CPLR 4106 with the constitutional and statutory requirements for a civil jury verdict, the trial court must, upon substituting an alternate juror in place of a regular juror after deliberations have begun, provide an instruction to the jury directing them, inter alia, to restart their deliberations from the beginning with the substituted juror and disregard and set aside all prior deliberations. Under the circumstances of this case, the Supreme Court's failure to give that instruction resulted in an invalid verdict which, among other things, deprived the defendants of their request to poll each of the jurors whose votes were counted as part of the verdict (see Duffy v. Vogel, 12 N.Y.3d 169, 878 N.Y.S.2d 246, 905 N.E.2d 1175 ), and their right to "a process in which each juror deliberates on all issues and attempts to influence with his or her individual judgment and persuasion the reasoning of the other five" ( Sharrow v. Dick Corp., 86 N.Y.2d at 60, 629 N.Y.S.2d 980, 653 N.E.2d 1150 ).

II.

On July 12, 2013, the plaintiff allegedly sustained personal injuries as result of a collision between a vehicle, in which she was a passenger, and a bus owned by the defendant New York City Transit Authority and operated by the defendant Theo F. Fraser III. During the liability portion of the trial, the jury was polled and found the defendants entirely at fault in the happening of the accident.

During the damages portion of the trial, the jury was to decide whether, as a result of the accident, the plaintiff sustained a "serious injury" within the meaning of Insurance Law § 5102(d), and, if so, the amount of monetary damages to which the plaintiff would be entitled. As the jury began its deliberations, counsel and the Supreme Court discussed whether to discharge the two alternate jurors. A court officer informed the court that juror number 6 had to attend a class at 2:00 p.m.

Plaintiff's counsel argued that CPLR 4106 permits the substitution of a regular juror with an alternate juror even after deliberations have begun. The Supreme Court agreed, but pointed out that, "[i]f, in fact, we need one or more of the alternates, they have to start deliberations all over again." Plaintiff's counsel disagreed, and argued that CPLR 4106 does not require the jury to commence deliberations from the beginning. The court then asked, "How would that work? They have been talking, say, for three hours, and then somebody new comes in?" Plaintiff's counsel argued that CPLR 4106 "doesn't require any other procedure." The court, with consent of counsel, decided to retain the alternate jurors in the event that a regular juror could not continue deliberating. Soon after that colloquy, the jury sent two notes requesting, inter alia, evidence. The first note, among other things, asked for medical bills, and a second note requested a readback of certain testimony. Given that it was not possible for the readback to be completed before the jury's 1:00 p.m. lunch break, the Supreme Court decided that it would send the jury to lunch prior to the readback and have the jury return at 2:15 p.m. The court informed counsel that juror number 6 "has something that he needs to go to today" at 2:00 p.m. The court suggested replacing juror number 6 with the first designated alternate, and asked whether counsel had any objections to the substitution. Plaintiff's counsel immediately consented to the substitution, but defense counsel wanted to "see where they are" before agreeing to the substitution. The court stated that, given the request for a readback, the jury would not finish by 1:00 p.m. Defense counsel then asked whether they could wait until 1:00 p.m. The court responded, "No, we have to read back the testimony, that's where we are." Defense counsel then stated, "Okay, I understand," indicating his consent to the substitution.

The Supreme Court then stated, "Tell juror number six he can go, and alternate number one goes into the deliberations," and the jury broke for lunch. Upon returning to the courtroom, the court informed the jury, "Before you are seated, juror number six we let go because he had to go to school, so alternate number one is now juror number six." The newly-composed jury then heard the readback of requested testimony, and returned to deliberations.

Shortly thereafter, the jury delivered a note indicating that it had reached its verdict. The Supreme Court then read the verdict into the record. The jury unanimously voted "yes" to the first question, which read, "did the plaintiff, Shana Caldwell, sustain a permanent consequential limitation of use of a body organ or member?" Five jurors voted "yes" and one juror dissented in response to the second question, which read, "did the plaintiff, Shana Caldwell, sustain a significant limitation of use of a body function or system?" Five jurors voted "yes" and one juror dissented in response to the third question, which read, "did the plaintiff, Shana Caldwell, sustain an injury which prevented her from performing substantially all of her customary daily activities for at least 90 of the first 180 days following the accident?"

In response to question four, five jurors voted to award the plaintiff the sum of $4,000,000 for pain and suffering, including loss of enjoyment of life, and $155,000 for medical expenses, with one juror dissenting. In response to question five, five jurors voted to award the plaintiff the sum of $8,750,000 for pain and suffering, including the permanent effect of the injury, from the time of the verdict to the time that the plaintiff could be expected to live, and $1,800,000 for future medical expenses, with one juror dissenting. In response to question six, the jury unanimously indicated that the awards for future pain and suffering and future medical expenses were intended to provide the plaintiff compensation for 48 years.

After reading the verdict, the Supreme Court thanked the jury and was about to discharge the jurors when defense counsel interjected with a request that the jurors be polled. Polling revealed that the announced verdict included the votes of the discharged juror as to questions one through four, and that the substituted juror only voted on questions five and six. As to questions one through four, the substituted juror was "not there."

Defense counsel objected, noting that "[w]e can't poll the juror who wasn't there." The Supreme Court responded, "You have the names on the verdict sheet, you know who the dissenting juror is, there is only one dissenting juror, okay." As the court polled the jurors, it commented, "you got through more than I thought you got through before we lost the juror."

Immediately after polling the jurors, the Supreme Court discharged the jury. Once the jurors left the courtroom, the court asked counsel whether there was "anything to put on the record." Citing to Duffy v. Vogel, 12 N.Y.3d 169, 878 N.Y.S.2d 246, 905 N.E.2d 1175, defense counsel contended, inter alia, that "because of the absence of the original juror number six, the verdict is incomplete and the jury cannot properly be polled." The court responded that the defendants "didn't object to what we did, replacing the juror," and "therefore, I don't care what the caselaw says, your objection, at this point, is out of time, and you waived. End of discussion." The plaintiff argued that the defendants’ failure to object to the substitution of the alternate juror in place of the regular juror was a "trick to try and work to invalidate the verdict that was upcoming." The court noted that, "we don't play those games in my courtroom," and ruled that the defendants "waived" their objection.

III.

CPLR 4104 provides that a jury shall be composed of six persons. As authorized by article I, § 2 of the State Constitution, CPLR 4113(a) provides that a verdict may be rendered by not less than five-sixths of the jurors constituting a jury (see Sharrow v. Dick Corp., 86 N.Y.2d 54, 629 N.Y.S.2d 980, 653 N.E.2d 1150 ; Gallegos v. Elite Model Mgt. Corp., 28 A.D.3d 50, 54, 807 N.Y.S.2d 44 ; State of New York v. Exxon Corp., 7 A.D.3d 926, 777 N.Y.S.2d 539 ; Waldman v. Cohen, 125 A.D.2d 116, 512 N.Y.S.2d 205 ). "[W]here the parties to a civil case have not agreed to a trial by fewer than six jurors, a valid verdict requires that all six jurors participate in the underlying deliberations" ( Sharrow v. Dick Corp., 86 N.Y.2d at 59–60, 629 N.Y.S.2d 980, 653 N.E.2d 1150 ). "The parties are entitled to a process in which each juror deliberates on all issues and attempts to influence with his or her individual judgment and persuasion the reasoning of the other five" ( id. at 60, 629 N.Y.S.2d 980, 653 N.E.2d 1150 ; see Waldman v. Cohen, 125 A.D.2d 116, 118, 512 N.Y.S.2d...