Preview
FILED: QUEENS COUNTY CLERK 03/09/2020 12:43 PM INDEX NO. 708417/2016
NYSCEF DOC. NO. 218 RECEIVED NYSCEF: 0
03/09/2020
Short Form Order
NEW YORK SUPREME COURT - QUEENS COUNTY
Present: Honorable, ALLAN B. WEISS IAS PART 2
Justice
TINY THOMAS and BIJU JOSE
Index No.: 708417/16
Plaintiff,
Motion Date: 4/3/20
-against-
Motion Seg. No.: 3
MATTHEW A. COHEN, M.D., KETSIA
DORCE, M.D., CHRISTINA M. GALEA, M.D.,
NORTH AMERICA PARTNERS IN ANESTHESIA
and NORTH SHORE-LONG ISLAND HEALTH
SYSTEM, NORTH SHORE UNIVERSITY HOSPITAL
Defendants.
The following numbered papers read on this motion by plaintiffs
for an Order pursuant to CPLR 4404(a) setting aside the verdict,
or recalling the jury and holding a hearing.
PAPERS
E-FILE NUMBERED
Notice of Motion-Affidavits-Exhibits 197 - 201
Answering Affidavits-Exhibits 204 - 207
Answering Affidavits-Exhibits 209
Replying Affidavits
Upon the foregoing papers it is ordered that this motion is
determined as follows.
The plaintiff commenced this action to recover damages for
personal injuiries she allegedly sustained based upon the allged
negligence, malpractice of the defendants, Dr. Matthew A. Cohen,
Dr. Ketsia Dorce, and Dr. Christina M. Galea. A jury trial of the
instant action was held after which the jury returned a verdict
on July 30, 2019 finding in favor of the defendants, Dr. Matthew
A. Cohen, Dr. Ketsia Dorce, and Dr. Christina M. Galea. The jury
was polled and each of the juror confirmed his or her verdict.
Plaintiff now moves to set aside the verdict based upon a
phone call plaintiff's counsel received on July 31, 2019 from the
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foreperson, Diane M. McEvaddy. An affidavit prepared by
plaintiff's counsel incorporating Ms. McEvaddy's claims was
submitted in support of the plaintiff's motion.
Ms. McEvaddy claims that "justice was not served in this
case" because of the alleged misconduct on the part of Juror #1
and Juror #2. As to Juror #1 she alleges that he appears to have
slept through half the trial, was functionally illiterate and
appeared to have a "highly inappropriate racial affinity for
Dr. Dorce." As to Juror #2 Ms. McEvaddy alleges that Juror #2
refused to participate in the jury's discussions of the case.
The plaintiff has failed to establish that the allegations
of juror misconduct existed, or even if it did, it was of such
nature as would warranted a new trial. It is well settled that
jurors may not impeach their own verdict (see Alford v Sventek,
53 NY2d 743, 744 [1981]). Absent extraordinary circumstances a
juror's post trial affidavit may not be used to attack a jury
verdict (see Youna Mee Oh v Koon, 140 AD3d 861 [2016] - Hoffman v
Domenico Bus Serv., 183 AD2d 807 [1992]). An exception to this
rule, however exists "when the juror's concern is transmitted to
the court prior to the report of the verdict..." (see Wino Shunq
Lam v Chung-Ko Chen°, 196 Misc 2d 538 [App Term 2003] McCooe, J.
dissent at 548, revd 5 AD3d 290 [2004] for the reasons stated in
the dissent). Although "[a] new trial may be warranted 'in the
interest of justice if there is evidence that substantial justice
has not been done as a result of juror misconduct" (LaChapelle v
McLoughlin, 68 AD3d 824, 825 (2009]). "It is not every
irregularity in the conduct of jurors that requires a new trial"
(Russo v Mignola, 142 A.D.3d 1064, 1066 [2016]). The "'misconduct
must be such as to prejudice a party in his substantial rights'"
(Russo v Mianola, 142 AD3d 1064, 1066 J2016] quoting Wiener v
Davidson, 61 AD2d 1030, 1030 [1978]).
Ms. McEvaddy's assertions are unsupported by any evidence or
factual allegations to support her claims. She has not set forth
any conduct on the part of Juror #1 or other basis to support her
claim of his alleged racial affinity for Dr. Dorce or that he
slept through most of the trial. It is pointed out that Juror #1
and Ms. McEvaddy cast the same vote with respect to Dr. Dorce. As
for her claim that he is "functionally illiterate", defense
counsels point out that during jury selection they learned that
Juror #1 holds an MBA and is a Supervisor of Investigations for
the New York City Department of Homeless Services which militates
aganst such a conclusion. As for her allegations with respect to
Juror #2, such conduct, even if true, is not such as would
warrant a new trial since there is no evidence that it prejudiced
plaintiff's rights. It is also significant that Ms. McEvaddy
never brought her concerns to the court's attention either during
the trial or during deliberations. It appears that Ms. McEvaddy's
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claims are.nothing more than "mere afterthoughts or second
guesses, raised post hoc by ... disaffected juror." (Wing Shung
Lam v Chung-Ko Chen°, supra at 540 quoting People v Rukaj, supra,
123 AD2d 277, 280 [1986]; see People v Johnson, 54 AD3d 636,
636-37 [2008]).
Accordingly, the plaintiff's motion to set aside the verdict
is denied.
Dated: March 5, 2020
D# 62
J.S.C.
3 of 3
Preview
FILED: QUEENS COUNTY CLERK 03/09/2020 12:43 PM INDEX NO. 708417/2016 NYSCEF DOC. NO. 218 RECEIVED NYSCEF: 0 03/09/2020 Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY Present: Honorable, ALLAN B. WEISS IAS PART 2 Justice TINY THOMAS and BIJU JOSE Index No.: 708417/16 Plaintiff, Motion Date: 4/3/20 -against- Motion Seg. No.: 3 MATTHEW A. COHEN, M.D., KETSIA DORCE, M.D., CHRISTINA M. GALEA, M.D., NORTH AMERICA PARTNERS IN ANESTHESIA and NORTH SHORE-LONG ISLAND HEALTH SYSTEM, NORTH SHORE UNIVERSITY HOSPITAL Defendants. The following numbered papers read on this motion by plaintiffs for an Order pursuant to CPLR 4404(a) setting aside the verdict, or recalling the jury and holding a hearing. PAPERS E-FILE NUMBERED Notice of Motion-Affidavits-Exhibits 197 - 201 Answering Affidavits-Exhibits 204 - 207 Answering Affidavits-Exhibits 209 Replying Affidavits Upon the foregoing papers it is ordered that this motion is determined as follows. The plaintiff commenced this action to recover damages for personal injuiries she allegedly sustained based upon the allged negligence, malpractice of the defendants, Dr. Matthew A. Cohen, Dr. Ketsia Dorce, and Dr. Christina M. Galea. A jury trial of the instant action was held after which the jury returned a verdict on July 30, 2019 finding in favor of the defendants, Dr. Matthew A. Cohen, Dr. Ketsia Dorce, and Dr. Christina M. Galea. The jury was polled and each of the juror confirmed his or her verdict. Plaintiff now moves to set aside the verdict based upon a phone call plaintiff's counsel received on July 31, 2019 from the 1 of 3 FILED: QUEENS COUNTY CLERK 03/09/2020 12:43 PM INDEX NO. 708417/2016 NYSCEF DOC. NO. 218 RECEIVED NYSCEF: 03/09/2020 foreperson, Diane M. McEvaddy. An affidavit prepared by plaintiff's counsel incorporating Ms. McEvaddy's claims was submitted in support of the plaintiff's motion. Ms. McEvaddy claims that "justice was not served in this case" because of the alleged misconduct on the part of Juror #1 and Juror #2. As to Juror #1 she alleges that he appears to have slept through half the trial, was functionally illiterate and appeared to have a "highly inappropriate racial affinity for Dr. Dorce." As to Juror #2 Ms. McEvaddy alleges that Juror #2 refused to participate in the jury's discussions of the case. The plaintiff has failed to establish that the allegations of juror misconduct existed, or even if it did, it was of such nature as would warranted a new trial. It is well settled that jurors may not impeach their own verdict (see Alford v Sventek, 53 NY2d 743, 744 [1981]). Absent extraordinary circumstances a juror's post trial affidavit may not be used to attack a jury verdict (see Youna Mee Oh v Koon, 140 AD3d 861 [2016] - Hoffman v Domenico Bus Serv., 183 AD2d 807 [1992]). An exception to this rule, however exists "when the juror's concern is transmitted to the court prior to the report of the verdict..." (see Wino Shunq Lam v Chung-Ko Chen°, 196 Misc 2d 538 [App Term 2003] McCooe, J. dissent at 548, revd 5 AD3d 290 [2004] for the reasons stated in the dissent). Although "[a] new trial may be warranted 'in the interest of justice if there is evidence that substantial justice has not been done as a result of juror misconduct" (LaChapelle v McLoughlin, 68 AD3d 824, 825 (2009]). "It is not every irregularity in the conduct of jurors that requires a new trial" (Russo v Mignola, 142 A.D.3d 1064, 1066 [2016]). The "'misconduct must be such as to prejudice a party in his substantial rights'" (Russo v Mianola, 142 AD3d 1064, 1066 J2016] quoting Wiener v Davidson, 61 AD2d 1030, 1030 [1978]). Ms. McEvaddy's assertions are unsupported by any evidence or factual allegations to support her claims. She has not set forth any conduct on the part of Juror #1 or other basis to support her claim of his alleged racial affinity for Dr. Dorce or that he slept through most of the trial. It is pointed out that Juror #1 and Ms. McEvaddy cast the same vote with respect to Dr. Dorce. As for her claim that he is "functionally illiterate", defense counsels point out that during jury selection they learned that Juror #1 holds an MBA and is a Supervisor of Investigations for the New York City Department of Homeless Services which militates aganst such a conclusion. As for her allegations with respect to Juror #2, such conduct, even if true, is not such as would warrant a new trial since there is no evidence that it prejudiced plaintiff's rights. It is also significant that Ms. McEvaddy never brought her concerns to the court's attention either during the trial or during deliberations. It appears that Ms. McEvaddy's 2 of 3 FILED: QUEENS COUNTY CLERK 03/09/2020 12:43 PM INDEX NO. 708417/2016 NYSCEF DOC. NO. 218 RECEIVED NYSCEF: 03/09/2020 claims are.nothing more than "mere afterthoughts or second guesses, raised post hoc by ... disaffected juror." (Wing Shung Lam v Chung-Ko Chen°, supra at 540 quoting People v Rukaj, supra, 123 AD2d 277, 280 [1986]; see People v Johnson, 54 AD3d 636, 636-37 [2008]). Accordingly, the plaintiff's motion to set aside the verdict is denied. Dated: March 5, 2020 D# 62 J.S.C. 3 of 3