Motion-Secondary: Lori Saporito-Elliott, James Elliott v. United Skates Of America, Inc.

On April 22, 2013 a Motion-Secondary was filed involving a dispute between James Elliott, Lori Saporito-Elliott, and United Skates Of America, Inc., for Tort in the District Court of Suffolk County.

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FILED: SUFFOLK COUNTY CLERK 06/17/2022 04:06 PM INDEX NO. 060563/2013
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
_____________________________________________Ç
LORI SAPORITO-ELLIOTT and JAMES ELLIOTT, Index No: 060563/2013

Plaintiff, AFFIRMATION IN SUPPORT
- against -

Return Date: July 18, 2022
UNITED SKATES OF AMERICA, INC.,

Defendant.

______________________________,.______________Ç

I, Christopher R. Dean, an attorney admitted to practice before the Courts of the State of

New York, affinn that the following statements are true under penalties of perjury:

1. I am a Partner with the law firm of DELL & DEAN, PLLC, the attorneys for the Plaintiffs

in the above captioned action, and am familiar with the facts and circumstances as revealed

by the file maintained in my office.

2. This Affirmation is respectfully submitted in support of Plaintiff's motion seeking an Order

pursuant to: (1) Pursuant to CPLR § 4404 setting aside the trial verdict in the interest of

justice; and (2) For such other and further relief as this Court deems just and proper.

PROCEDURAL BACKGROUND

3. This action stems from a trip and fall incident that occurred on January 26, 2013 at the

United Skates of America.

4. Plaintiff commenced this action with the purchase of an index number and the filing of the

Summons and Complaint on April 22, 2013. See Summons and Complaint annexed hereto

"A."
as Exhibit

5. Defendant joined issue with the filing of the Answer on May 23, 2013. See Answer annexed

"B."
hereto as Exhibit

6. The Note of Issue was filed on March 17, 2017. See Note of Issue annexed hereto as

"C."
Exhibit

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7. The trial of this matter commenced on May 17, 2022.

8. On May 19, 2022, the jury returned a verdict for Defendant. See trial extract annexed

Exhibit"D."
hereto as

9. During deliberations, certain events transpired which both compel me to make the within

motion and mandate that the jury verdict be set aside in the interest of justice (see, CPLR

4404[a]).

10. To the extent that I relate below events which took place in the courtroom during jury

deliberations, these are events which I personally observed and heard.

11. To the extent that I relate below events which apparently took place in the jury room, this

information is based upon the affidavit from juror, Mr. Kenneth Haskell. See Affidavit of

Kenneth Haskell, dated June 10, 2022 ["Haskell Affidavit"] annexed hereto as Exhibit

JURY DELIBERATIONS AND VERDICT

12. The jury was appropriately given the case to deliberate after jury instructions were given

by the Court. After deliberations had begun, an initial Jury note was generated indicating

that the Jurors wished to see exhibits that had been marked into evidence. The jurors were

then supplied with the exhibits.

13. As deliberations continued, a second Jury note was brought into the courtroom by Court

Officer Pozgay and the Officer handed this second Jury note to the assigned clerk, Ms.

Vlachos. Ms. Vlachos was situated directly in my vicinity, and I observed her take said

second Jury note from the Officer and utilize the door nearest to her workstation which

leads to the Law Secretary's office and the Judge's Chambers. She appeared again within

a few short minutes and commented to the effect that "they need to clarify what they are

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asking,"
as she walked by Plaintiff counsel's table towards the main entrance of the

Courtroom.

14. This second Jury note was not marked as an exhibit, was not shown to counsel and was not

addressed in any way to counsel. I was never provided with a copy of this note despite my

post-verdict efforts to obtain same. I also personally spoke with the Suffolk County

Principal Court Clerk, who advised me that this note was never provided to the Clerk's

Office or uploaded to NYSCEF.

15. Critically, I only learned that Ms. Vlachos had actually entered the Jury room and spoke

directly to the deliberating Jurors after the verdict had been taken and the jury was released,

when I got the opportunity to speak to one of the Jurors outside of the Courthouse building.

16. Officer Pozgay remained in the Courtroom after Ms. Vlachos had exited with the second

jury Note and approximately five (5) minutes later Ms. Vlachos re-entered the Courtroom,

still with a document that resembled the second Jury note she had left with in her hand and

question."
commented to the effect that "they are having a hard time articulating the Itwas

at this point that I had a brief conversation with my client, Ms. Saporito-Elliot, noting that

this was not a normal occurrence in that there was a Jury note generated but not marked

and addressed with counsel. Ms. Saporito-Elliot was also acutely aware of this fact as she

was, and stillis,employed as a Court Reporter within the New York State Court system.

17. I also recall specifically commenting to defense counsel, Rondiene Novitz, Esq., about the

note and both of us agreeing that we'd never seen anything like this before. It was also

during this time that I anticipated that the court would address the Jury note and inform us

as to its content and the manner in which the court would address it. However, no

discussion was forthcoming, and the Jury note was not addressed at that time.

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18. Only approximately two (2) minutes later, Court Officer Pozgay, who left the Courtroom

after Ms. Vlachos had returned, himself returned to the Courtroom and indicated to the

question."
effect that "they no longer have a

19. Just a few short minutes after that, the Court Officer indicated that there was another (third)

Jury note and that they had reached a verdict.

20. After the verdict was read, which was rendered in favor.of the defendant, I respectfully

requested and was graciously granted thirty (30) days to file this post-trial motion.

21. As a matter of the usual practice and procedure which I have followed for decades, if Iam

able to speak to any of the empaneled Jurors about their experience, I take the opportunity

to do so in order to learn from that particular trial.

22. In this instance, as I left the Courthouse, I encountered only one (1) of the jurors, Mr.

Kenneth Haskell. I asked Mr. Haskell his thoughts about the trialand, without provocation

and unsolicited, he began to tellme about the ultimate decision that the Jurors had rendered.

"chaos" lady"
He agreed that the skating facility was but that after "speaking with the and

"negligence" "fault"
her discussing and addressing and and certain facts about the case,

they had made their decision.

23. I obviously was stunned and asked him to explain further what had occurred. Mr. Haskell

then disclosed that the Jurors had sent out a note which indicated that they had a question

and that the question pertained to the first question on the Verdict Sheet, dealing with the

negligence of the defendant. He indicated that after the note was sent out, the Clerk had

"negligence"
returned, entered the Jury Room and a discussion ensued. He told me that

"fault"
was discussed, was discussed, that certain facts were referenced, and that the Clerk

specifically and unequivocally responded and discussed these issues with the Jurors. I then

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knew that the Jury deliberations had seemingly been compromised and that I had to further

inquire about what had occurred. I believed then (and stillbelieve) that I had an ethical

obligation to do so on behalf of my client, and to confirm what seemed to be an unfortunate,

albeit colossal, mistake in judgment by the Court Clerk.

MY EMAIL TO THE COURT

24. That night, and with a heavy heart, I concluded that I had to notify the Court of what I had

been told. I sent an email (uploading a copy to NYSEF) to the Court and defense counsel

explaining that a breach of conduct may have occurred and that I wished to have this second

Jury note marked and preserved for potential motion practice. I did not receive any

response from anyone until I was notified that a conference, and my personal appearance,

was ordered for June 9, 2022. See Email to the Court, dated May 19, 2022, annexed hereto

"F."
as Exhibit

25. Soon thereafter, although I did not have Juror phone numbers or contacts, I was able to

ascertain information regarding two (2) additional jurors and spoke to them directly.

FURTHER INQUIRY

26. Juror Sandra Giotta confirmed with me that the Clerk had entered the Jury room, a

conversation had ensued, but she could not recall specifies of the conversation.

27. I also contacted and spoke to Juror Behrend McGrath. Mr. McGrath, however, did not want

to discuss anything about the case and did not want to confirm nor deny that the Clerk had

entered the room or that discussions had occurred.

28. As indicated, my initial concerns were then (and are now) twofold; i.A, the Jury note and

the conversation. It was my obligation to my client that I further inquire about what had

occurred. Accordingly, I contacted Officer Pozgay and confinned, after he indicated that

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he was allowed to talk with me, that there had been a second Jury note that was dealt with

and addressed by the Clerk, Ms. Vlachos. Officer Pozgay indicated that he delivered the

second Jury note and Ms. Vlachos had thereafter entered the Jury room and that Officer

Pozgay was not present during any conversations that she had.

29. I also contacted the Court Stenographer, Rebecca Wood, but only after receiving

permission to do so from Michael Barfield, the Principal Court Reporter of Suffolk County.

Ms. Wood also confinned that there had been a second Jury note and that the note had not

been marked and that she also became aware that Ms. Vlachos had entered the Jury room

and that discussions had occurred, although she was not present for, nor did she hear, any

such discussions.

THE JUNE 9, 2022 CONFERENCE

30. On June 8, 2022, I was directed by Your Honor to appear the following day. See Transcript

"G."
of Proceedings, June 9, 2022, annexed hereto as Exhibit

95
31. During this June Conference itwas made abundantly clear to me, and acknowledged by

the Court, that Ms. Vlaches had, in fact, received the second Jury note, although same had

not been duly marked or documented, and that she entered the Jury Room, at the Court's

"question."
apparent direction with explicit instructions to essentially clarify their

Although the litigants have never seen this second Jury note, I do not take any issue with

9*
the Court's June recitation of itscontent.

THE HASKELL AFFIDAVIT

9*
32. Ultimately, and only after the June conference/hearing, was I finally able to obtain an

Affidavit from Juror Kenneth Haskell ["Haskell Affidavit"]. When I spoke with Mr.

95
Haskell after the June conference I asked him if he would be willing to memorialize in

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an affidavit what he had previously told me on the date of the verdict. Mr. Haskell agreed

and, it isrespectfully submitted, the Haskell Affidavit is critical to the adjudication of this

motion.

33. Based upon the Haskell Affidavit, itis now evident that the courtroom clerk, Ms. Vlachos,

while ostensibly charged solely with returning the subject Jury note to the jury and

instructing them to put any question they had in writing and in proper form, spoke with the

jury about the subject note and their question(s), outside of the presence of the Your Honor,

counsel, the parties, and the court reporter (see, Ex. E [Haskell Affidavit] at ¶¶ 4-9). This

was apparently done in a manner that that was not contemplated by the Court.

34. Based upon the Haskell Affidavit, it isnow evident that Ms. Vlachos spoke to the jurors

beyond what apparently had been requested of her by Your Honor. The discussion in the

"negligence" "fault" "facts"
jury room included and and specific of the case (se_e,Ex. E

[Haskell Affidavit] at ¶ 7). Furthermore, according to Mr. Haskell, Ms. Vlachos defined

wrong"
negligence to the jury "as someone doing something and that the jury "should

well"
consider negligence during the moment of the accident as (id., at ¶ 8).

35. Based upon the Haskell Affidavit, itis also now evident that Ms. Vlachos was in that Jury

room for approximately three (3) to five (5) minutes (se_e,Ex. E [Haskell Affidavit] at ¶ 7),

not the ten (10) seconds which Your Honor believed to be the case (s_ee, Ex. G [June 9,

2022 Trans.] at p. 6).

36. Based upon the Haskell Affidavit, it is also now evident that after the jury's discussion

with Ms. Vlachos regarding the issues of negligence, fault and the facts surrounding the

accident, the jurors apparently feltthat they no longer needed clarification on their question

and thereupon rendered a defense verdict within a few short minutes.

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Vlachos'
37. Based upon the Haskell Affidavit, it is also now evident that Ms. description to

the Court about what had occurred in the Jury room was neither accurate nor complete.

38. Based upon what I observed in the courtroom during thistime period, as well as the Haskell

Affidavit, itis now evident that Ms. Vlachos, good intentioned or not, made a significant

and serious mistake in apparently disregarding the specific instructions of the Court and

addressing the deliberating jurors.

39. During the June 9, 2022 conference, I was advised by the Court that should I pursue the

ground"
within motion, I had "better be on extremely firm (Ex. G [June 9, 2022 Trans.], at

it"
p. 20), and that "I better do a yeoman's job of documenting (idL,at p. 21).

40. As an Officer of the Court, and one who has been in good standing in both New York and

Federal Courts since my admission, I believe that I have fulfilled both my obligation to my

client and to this Court, by abiding by Your Honor's mandate to document what transpired

in the jury room immediately prior to the verdict being rendered in this case.

Vlachos'
41. Given these circumstances, it is respectfully submitted that the Ms. interaction

with the jury during deliberations constituted an improper intrusion into the sacrosanet

jury-deliberation process and Plaintiff was prejudiced thereby.

42. As will be demonstrated in the following pages, these circumstances warrant setting aside

the verdict in the interest of justice (see, CPLR 4404[a]).

LEGAL ARGUMENT

THE TRIAL VERDICT SHOULD BE SET ASIDE IN THE INTEREST OF
JUSTICE

43. Pursuant to CPLR 4404(a):

After a trial of a cause of action or issue triable of right by a jury,
upon the motion of any party or on its own initiative, the court may
set aside a verdict or any judgment entered thereon and direct that

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judgment be entered in favor of a party entitled to judgment as a
matter of law or it may order a new trial of a cause of action or
separable issue where the verdict is contrary to the weight of the

evidence, in the interest of justice or where the jury cannot agree

after being kept together for as long as is deemed reasonable by the
court.

44. It is well settled that whether to grant a motion for a new trial pursuant to CPLR 4404(a)

is committed to the trialcourt's discretion and will not be disturbed absent an abuse of that

discretion (see, Micallef v. Miehle Co. Div. of Miehle-Goss Dexter, 39 NY2d 376, 381

[1976]).

45. In Micallef (supra), the Court of Appeals instructed as follows:

CPLR 4404 (subd. (a)) authorizes the court, either by motion of

any party, or on itsown initiative, to order a new trial 'in the
justice'
interest of It ispredicated on the assumption that the Judge
who presides at trialis in the best position to evaluate errors
therein (4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 4404.01).

The Trial Judge must decide whether substantial justice has been

done, whether itis likely that the verdict has been affected (Matter
of De Lano, 34 A.D.2d 1031, 1032, 311 N.Y.S.2d 134, affd. 28
N.Y.2d 587, 319 N.Y.S.2d 587, **575 268 N.E.2d 642) and 'must
look to his own common sense, experience and sense of fairness
decision' Weinstein-
rather than to precedents in arriving at a (4

Korn-Miller, N.Y.Civ.Prac., par. 4404.11).

46. Significantly, although itis a well-settled rule of public policy that affidavits of jurors will

not be received to impeach the verdict (see, People v. Sprague, 217 NY 373, 381 [1916]),

such may be considered where itevidences misconduct on the part of other persons in their

[45
dealings with the jurors (s, Burtch v. Shah, 230 AD2d 223 Dept., 1997]; Schrader v.

Joseph H. Gertner, Jr.,Inc., 282 AD 1064 [2d Dept.,1953]; see also,Mercurio v. Dunlop,

77 AD2d 647, 648 [2d Dept., 1980]).

[4th
47. For example, in Burtch v. Shah (230 AD2d 223 Dept., 1997]), a court attendant

intercepted a jury note and spoke with the jurors outside of the presence of the Judge, the

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attorneys, and the court reporter. The Appellate Division set aside the verdict and granted

a new trialbecause a different verdict may have been rendered "if the misconduct had not

occurred"
(id., at 227).

48. Here, the record developed thus far establishes that Ms. Vlachos, a Court Clerk, discussed

a jury note with the jury during its deliberations, and spoke with the jury outside the

presence of the Judge, the court reporter, counsel, and the parties. As stated by juror Mr.

Kenneth Haskell, the jury had expressed concerns to the clerk about the first question

regarding negligence. Ms. Vlachos spoke to the jurors in the jury room regarding

"negligence" "fault" "facts"
and and specific of the case (see, Ex. E [Haskell Affidavit] at

¶ 7). Furthermore, according to Mr. Haskell, Ms. Vlachos defined negligence to the jury

wrong"
"as someone doing something and that the jury "should consider negligence during

well"
the moment of the accident as (id., at ¶ 8). Following this discussion with Ms.

Vlachos, the jury no longer needed clarification on their negligence question from the

Court as had been indicated in their second Jury note (the contents of which were never

disclosed to counsel) (id.,at ¶ 10). Unfortunately, the jury then applied what the clerk had

told them and almost immediately thereafter rendered their verdict.

49. To the extent that the Haskell Affidavit evidences that Ms. Vlachos had instructed the jury

regarding legal concepts and discussed the facts of the case, this clearly constitutes grounds

for setting aside a jury verdict (see, Burtch v. Shah, 230 AD2d 223, supra). Indeed, the

Second Department has instructed that, in situations such as this, it does not have to be

proven that the Court Clerk's statements to the jury actually influenced the jury, so long as

the natural tendency under the circumstances is to influence (Mercurio v. Dunlop, 77 AD2d

647, 648-649, supra).

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50. In addition, there is littlequestion that, had Your Honor undertaken actions similar to those

of Ms. Vlachos, the jury verdict would have to be set aside. In this vein, the Second

Department's decision in Blaha v. Lettmoden (83 AD2d 619, 621 [2d Dept., 1981]), is

instructive.

51. In Blaha (supra), the Second Department determined that itwas improper for the trialjudge

to enter the jury room with the court reporter, without counsel or the parties, to give the

jury further instructions on the law. Therein, the Second Department indicated as follows

(ii, at 621):

The proper practice, and it is wise and salutary, is that further
instructions requested by a jury after it has retired should be given

by the justice presiding to the jury in open court when counsel for
both sides are present or have been afforded the opportunity of being
present, unless counsel on both sides consent to written instructions
or to the requested reading of the record or parts thereof by the
stenographer in the jury room.

52. The Second Department's decision in Hutchinson v. Clare Rose of Nassau, Inc. (40 AD3d

practices"
702 [2d Dept., 2007]), is also instructive with reference to "best when confronted

with a situation similar to the matter at bar.

53. In Hutchinson (supra) it became apparent during an informal, post-verdict conversation

with the jury in the trialjudge's chambers that one of the jurors had ignored expert

testimony and rendered his own conclusions based on his experience as a physical

therapist. The trial judge acknowledged that the juror had disregarded the court's

instructions but denied Plaintiff's request to question the juror under oath regarding

deliberations.

54. The Second Department set aside the verdict, reasoning that once the trial court concluded

that a substantial breach of her instructions had occurred, "it was an improvident exercise

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of discretion to deny the plaintiff's request to make a proper record to facilitate subsequent

review"
judicial review, including appellate (Hutchinson v. Clare Rose of Nassau, Inc. 40

AD3d 702, 704, supra). The appellate court went on to state that, having failed to allow

the plaintiff to make a proper record, "the trialjudge made itimpossible to determine ifthe

process"
alleged juror misconduct improperly influenced the deliberative (Hutchinson,

supra at 704).

55. Given the foregoing, it isrespectfully submitted that the verdict must be set aside in the

interest of justice (see, Burtch v. Shah, 230 AD2d 223, supra; Blaha v. Lettmoden, 83

AD2d 619, supra).

56. In the event the Court is of the view that further information is required in order to render

a determination on this motion, it is respectfully submitted that a hearing should be

conducted so as to make a proper record for potential appellate review (see, Mercurio v.

Dunlop, 77 AD2d 647, 648 [2d Dept., 1980] "the trial court should have held a hearing

on plaintiff's post-trial motion to set aside the verdict, inter alia, because of improper

officer;" [4d'
behavior by a court see also, Matter of Small Smiles Litig., 125 AD3d 1395

- that the trial court "abused its discretion in the manner in which it
Dept., 2015] holding

investigated and determined the issue [ofJ whether there had been improper outside

influence * *
on the jury *").

Plaintiffs'
WHEREFORE, itis respectfully requested that this Court grant motion in itsentirety,

and for such other and further relief as this Court deem just and proper.

Dated: Garden City, New York
June 17, 2022

C R R. DEAN

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
----------------------------------------------------------------X Index No: 060563/2013
LORI SAPORITO-ELLIOTT and JAMES ELLIOTT,
CERTIFICATION OF WORD
Plaintiff, COUNT
- against -

UNITED SKATES OF AMERICA, INC.,

Defendant.
_________________________________________________Ç

I, CHRISTOPHER R. DEAN, an attorney admitted to practice in the courts of the State of

New York, certify that the annexed Affirmation in Support contains 3848 words, as calculated by

Microsoft Word, and such document complies with the 7,000 word limit as set forth by Uniform

Civil Rules for the Supreme Court & The County Court § 202.8-b.

Dated: Garden City, NY
June 17, 2022

C 1s er R. Dean
D L & DEAN, PLLC
Attorneys for Plaintiffs
1225 Franklin Ave., Suite 450
Garden City, NY 11530

880 - 9700
(516)

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Case Info

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DENISE F. MOLIA Track Judge’s New Case

Case No.

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Document Filed Date

June 17, 2022

Case Filing Date

April 22, 2013

County

Parties

DELL, JOSEPH GERARD Attorney for the Plaintiff
DVOSKIN, GARY E Attorney for the Defendants
DVOSKIN, GARY EDWARD Attorney for the Defendant
GURTMAN, SCOTT I Attorney for the Defendant
James Elliott Plaintiff
LITTLE, MELANIE LYNNE Attorney for the Plaintiff
Lori Saporito-elliott Plaintiff
NOVITZ, RONDIENE E Attorney for the Defendant
United Skates of America, Inc. Defendant
JOSEPH DOSA Attorneys for Defendants
JAY MASSARO Attorneys for Plaintiffs
KRISTEN SINNOTT Attorneys for Plaintiffs
CHRISTOPHER DEY Attorney
ANTONIO MARENO Attorney
CHRISTOPHER DEAN Attorney
SCOTT HORN Attorneys for Defendants
LAUREN BRYANT Attorneys for Defendants

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Motion-Secondary: Lori Saporito-Elliott, James Elliott v. United Skates Of America, Inc.

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