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FILED: RICHMOND COUNTY CLERK 09/13/2021 05:25 PM INDEX NO. 100835/2015
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 09/13/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
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SARA HARDEN,
Index No. 100835/2015
Plaintiff,
- against - AFFIRMATION
THE CITY OF NEW YORK, COLBY PROPERTY
MANAGEMENT, GOTHAM PROPERTY
MANAGEMENT, CYPRESS CREST II CONDO,
WILLIAM A. MORRIS III, and CYPRESS CREST III
CONDOMINIUM,
Defendants.
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Christopher J. Power, Esq., an attorney duly admitted to practice law before the Courts of
the State of New York, hereby affirms the following under the penalties of perjury:
1. I am special counsel with the law firm of Marshall Dennehey Warner Coleman &
Goggin, attorneys of record for defendants CYPRESS CREST II CONDO (hereinafter referred to as
"Cypress Crest II"), and, as such, am fully familiar with the facts and circumstances surrounding this
litigation by reason of a review of the file maintained by this office.
2. A jury trial of this action was held before the Honorable Wayne Ozzi, commencing on
August 24, 2021. A jury verdict on liability was rendered on September 2, 2021.
3. This affirmation is submitted in support of defendant Cypress Crest II's motion,
pursuant to CPLR §4406, which allows for a single post-trial motion and requires that every ground
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for post-trial relief be raised in said single motion. Said motion must be submitted to the Court
within 15 days of the verdict date. Therefore, the instant motion is timely.
4. The matter before this Court was a slip/fall on ice.
5. The motion before this Court is to respectfully request that the jury verdict which
found no comparative negligence on the part of plaintiff, Sara Harden, as against the weight of the
evidence, be set aside and a new trial ordered. Defendant Crest Condo II further requests that this
Court modify the jury verdict to conform to the law of the case, a prior Court's holding stating that
the subject walkway was jointly owned by the defendants, and that based upon the law of the case,
as a matter of law, the apportionment of liability of the defendants is equal. It is also requested that
the verdict be set aside due to juror misconduct as, upon information and belief, a juror admittedly
stated that the jury made had up their minds concerning the liability in the case the first week of the
trial.
6. The legal standard for determining a motion to set aside a verdict or judgment as
against the weight of the evidence, is whether the jury could not have reached its verdict by any fair
interpretation of the evidence.
THE VERDICT
7. On September 2, 2021, at approximately 2:00 pm, the jury charge was read to the jury.
The jury retired at 3:00 pm for their deliberations. At 3:40 pm, the jury sent a note to the Court that
they had reached a verdict.
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8. During the course of their deliberations, the jury did not request any of the evidence
in this case, nor did they request any read back of testimony. The jury further did not request a re-
reading of the charge of negligence.
9. The jury verdict was a finding of 75% negligence on the part of defendant, Cypress
Crest II, and 25% negligence on the part of defendant, Cypress Crest III.
10. The jury found 0% comparative negligence on the part of plaintiff, Sara Harden,
despite her direct testimony as well as cross-examination by the defendants.
11. It is clear from the jury's decision, made after 40 minutes of deliberation, and after
approximately 1½ weeks of trial testimony, that the jury simply ignored all of the evidence and by
one juror’s word, upon information and belief, wanted to be "done".
POINT I
THE JURY IGNORED THE COMPARATIVE NEGLIGENCE OF THE PLAINTIFF
12. Plaintiff, Sara Harden, testified at trial. A copy of said testimony is annexed hereto as
Exhibit "A".
13. Upon direct examination by her counsel, plaintiff was asked the following questions
and gave the following answers:
Q. Okay. When you decided to go to the right, can you describe
to the jury the condition of that walkway just before you began
to walk on it?
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A. It was a sheet of ice. It was a solid sheet of ice. There was
maybe one or two patches where you could see the concrete
but not concrete. Does that make sense?
Q. You could see through the ice?
A. Right.
Q. Now was there any salt on the ground?
A. No.
Q. Did it appear as if the walkway had been salted at any time
before the accident?
A. Absolutely not.
Q. Now, describe for the jury exactly what happened.
A. I proceeded to exit my gate and go the right. I was watching as
I walked. I got maybe about 20, 30 feet when my left leg
slipped on the ice and started to slip out from under me.
See Ex. A, p. 111, l. 25 – p. 112, l. 17.
14. It is clear, based upon plaintiff Sara Harden's direct testimony from her own attorney,
that she saw what was there to be seen, an open and obvious icy condition if one is to believe her
sworn testimony, and further that she made a conscious decision to walk on the ice.
15. It is apparent, based upon the jury's verdict, that they completely ignored plaintiff's
sworn testimony in finding any comparative negligence on plaintiff for causing her own injury.
16. During cross-examination by your affirmant, the following questions were asked of
plaintiff, Sara Harden:
Q. Thank you. So you see the ice, correct?
A. Yes.
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Q. And then you walked 20, 25 feet down that walkway, right?
A. 20 to 30, correct.
See Ex. A, p. 126, l. 14-18.
17. Furthermore, upon cross-examination of plaintiff by counsel for co-defendant,
Cypress Crest III, the following series of questions were asked:
Q. And did you look to your right --
A. Yes.
Q. -- where the other pooling condition was?
A. Yes.
Q. And you could see that; is that correct?
A. Correct.
Q. And you've known about this condition in the walkway for
years before this accident, correct?
A. Yes.
Q. And have you seen ice form there before?
A. Yes.
Q. And you've seen puddles there before?
A. Yes.
Q. And you walked towards that condition, is that correct on the
date of the accident?
A. Correct.
Q. And you were looking at that condition on the day of the
accident?
A. Correct.
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Q. You looked at that condition as you approached it on the day
of the accident?
A. Yes.
Q. And you stepped on that condition on the date of the accident?
A. I didn't have a choice.
See Ex. A, p. 158, l. 2 thru p. 159, l. 1
18. Upon re-cross examination by your affirmant, the plaintiff was asked the following
questions and gave the following answers:
Q. And did you testify to this jury that you didn't have a choice
but to walk down that walkway?
A. Correct.
Q. Could you have not walked down it? Wouldn't that have been
another choice if it was at (sic) dangerous and icy as you
testified to this jury that it was?
A. My daughter needed to go to school.
See Ex. A, p. 172, l. 14 thru 21.
19. It is clear from this jury's verdict that they disregarded this entire line of questioning,
as well as plaintiff’s sworn testimony, regarding the plaintiff's own comparative negligence.
20. No reasonable jury could have come to a more different conclusion then finding the
plaintiff partially or totally at fault for her own negligence in making the conscious decision to
admittedly walking on an icy and dangerous condition, which she stated she observed before
walking on same.
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21. Based upon the evidence adduced at trial, the jury could reasonably conclude that the
plaintiff's own actions solely contributed to her fall.
22. To sustain a determination that a jury verdict is not supposed by sufficient evidence,
as a matter of law, there must be "no valid line of reasoning and permissible inferences which could
possibly lead rational men to the conclusion reached by the jury on the basis of the evidence
presented at trial. See, Nicastro v. Park, 495 N.Y.S.2d 184 (2nd Dept. 1985) citing to Cohen v. Hallmark
Cards, 410 N.Y.S.2d 282 (Ct. Appeals 1978).
23. A trial court may set aside a jury verdict and "direct that judgment be entered in favor
of a party entitled to judgment as a matter of law" (CPLR §4404[a]). In order to find that a jury
verdict is not supported by sufficient evidence as a matter of law, there must be "no valid line of
reasoning and permissible inferences which could possibly lead rational [people] to the conclusion
reached by the jury on the basis of the evidence presented at trial. See, Yankovitch v. Fessel, 95
N.Y.S.3d 582 (2nd Dept. 2019) citing to Cohen, supra.
24. The plaintiff in the instant action gave sworn testimony to the jury stating that she
walked on an icy walkway for 25-30 feet before she fell. The jury ignored the plaintiff's sworn
testimony in finding no comparative negligence on her part for her conscious action.
25. It is against the weight of the evidence that this jury found no comparative negligence
on the part of plaintiff.
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26. This is not a case where a jury was presented with conflicting testimony as to how an
accident occurred. The plaintiff admittedly testified to walking on ice for 25-30 feet before this
incident occurred.
27. A fair interpretation of the evidence at trial does not support the jury apportionment
of liability to plaintiff at zero and thus, the verdict should be vacated in its entirety.
28. No rational jury would find the plaintiff to be comparative negligence free when, by
plaintiff's own admission, she observed an open and obvious condition, the icy walkway, and then
made a conscious decision to walk 25-30 feet on said icy walkway, when she was allegedly caused
to slip and fall.
29. As such, the verdict of this jury should be set aside and a new trial so ordered.
POINT II
THE LAW OF THIS CASE IS JOINT OWNERSHIP
30. By Order dated March 1, 2019, the Honorable Thomas P. Aliotta ruled as a matter of
law that the walkway between Cypress Crest II and Cypress Crest III was owned jointly between
the two entities. (A copy of said Order is annexed hereto as Exhibit "B".)
31. No appeal or motion to reargue was ever taken from said Order.
32. Your affirmant understands that Cypress Crest II and Cypress Crest III are separate
entities. Each was entitled to their own question of negligence on the jury verdict sheet.
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33. However, as a matter of law, the law of this case is joint ownership and any
percentages of fault must be equally shared between Cypress Crest II and Cypress Crest III.
34. Your affirmant respectfully requests that this Honorable Court issue an Order
determining that the negligence, if any, of the defendants is equal. They are the joint owners of the
property and absent any showing to the contrary, it is the law of the case and cannot be altered by a
jury finding.
35. Defendants Cypress Crest II and Cypress Crest III share any negligence equally, no
matter what a jury finds. A jury is not empowered to change the law of the case.
36. While plaintiff's counsel was well within his right to ask the jury to apportion
percentages during his summation, neither he nor the jury can interfere with the law of the case.
37. It is respectfully requested that this Court, based upon the law of the case, vacate that
portion of the jury’s finding regarding percentages of liability, and rule as a matter of law, that
liability, if any, of the defendants reflect the law of the case.
POINT III
JUROR MISCONDUCT
38. Defendant, Cypress Crest II, moves to have the jury verdict set aside on the ground of
juror misconduct.
39. After the verdict was rendered in this action, in discussing this case with the jurors,
Juror One, the foreperson, upon information and belief, stated words to the effect that the jury had
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their minds made up the first week of the trial. The juror further stated that they were "done" and
that they were not going to come back the next day (to deliberate any further). Hence, the 40 minute
verdict.
40. This Court, throughout the week and a half trial, repeatedly admonished the jurors
each and every time they left the courtroom, not to discuss the case until it was submitted to them.
41. The jury clearly did not listen to and abide by the Court’s repetitive admonitions.
42. A defendant is entitled to have a jury verdict set aside on the grounds of juror
misconduct where there was evidence that the jurors and alternate jurors discussed trial testimony,
credibility of witnesses, and defendant's guilt or innocence before deliberations commenced. See,
People v. Romano, 778 N.Y.S.2d 517 (2nd Dept. 2004).
43. This information regarding the premature deliberations amongst the jurors was only
learned by your affirmant after the verdict was rendered. Had your affirmant known of this while
still in the Court, I would have so advised the Court.
44. Should a Court learn during the course of a trial that premature deliberations had
taken place, the Court must inquire into the extent, if any, that the jury has engaged in premature
discussions of the case in violation of its duty. See, People v. Brown, 802 N.Y.S.2d 694 (2nd Dept. 2005).
45. The fact that a juror stated that they had their minds made up the first week of trial
clearly established grounds for vacating the verdict in this case, and a new trial directed by the
Court.
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46. It is respectfully requested that the Court direct Juror One, the foreperson on this jury,
and if deemed necessary, all jurors who were sworn to hear this case and render a just verdict, to
appear before this Court to discuss the conduct of the jury and answer questions from the attorney’s
concerning comments that they had their minds made up the first week of the trial.
47. All counsel are entitled to know what the jurors were discussing amongst themselves
regarding this case prior to this Court submitting this case to them to deliberate.
48. Contrary to this Court’s constant and repetitive instructions not to discuss this case
before it was submitted to jury, based upon the comments allegedly made by the foreperson, the
jurors in this case clearly ignored this Court admonitions.
49. In fairness to the defendants, a new trial on liability is warranted.
WHEREFORE, it is respectfully requested that this Court, pursuant to CPLR §4106, issue an
Order vacating the jury verdict in this case in its entirety, and directing a new trial on liability based
upon the following:
(a) the jury disregarding the plaintiff's sworn testimony regarding her own
comparative negligence;
(b) apparent juror misconduct as it appears the jury discussed the testimony of
this case, prior to the case being submitted to them for deliberations, contrary
to this Court’s admonitions or, in the alternative;
(c) that this Court hold, as a matter of law to the case law of this case established
by the Order of Justice Aliotto and direct that the defendants as co-owner’s of
the property share equally in any liability imposed upon them by a jury; and
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(d) for such other and further relief as this Court may deem just and proper.
Dated: Melville, New York
September 13, 2021
Christopher J. Power
Christopher J. Power
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WORD COUNT CERTIFICATION
I, Christopher J. Power, Esq., certify that the defendants Post-Trial Affirmation in Support
complies with the word count (excluding the caption, signature block and this certification) and
page count limits as set forth in the Uniform Civil Rules for the Supreme Court Rule 202.8-b. The
defendant's Post-Trial Affirmation in Support contains 2,534 words.
Christopher J. Power
Christopher J. Power, Esq.
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Preview
FILED: RICHMOND COUNTY CLERK 09/13/2021 05:25 PM INDEX NO. 100835/2015 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 09/13/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND ----------------------------------------------------------------------X SARA HARDEN, Index No. 100835/2015 Plaintiff, - against - AFFIRMATION THE CITY OF NEW YORK, COLBY PROPERTY MANAGEMENT, GOTHAM PROPERTY MANAGEMENT, CYPRESS CREST II CONDO, WILLIAM A. MORRIS III, and CYPRESS CREST III CONDOMINIUM, Defendants. ----------------------------------------------------------------------X Christopher J. Power, Esq., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following under the penalties of perjury: 1. I am special counsel with the law firm of Marshall Dennehey Warner Coleman & Goggin, attorneys of record for defendants CYPRESS CREST II CONDO (hereinafter referred to as "Cypress Crest II"), and, as such, am fully familiar with the facts and circumstances surrounding this litigation by reason of a review of the file maintained by this office. 2. A jury trial of this action was held before the Honorable Wayne Ozzi, commencing on August 24, 2021. A jury verdict on liability was rendered on September 2, 2021. 3. This affirmation is submitted in support of defendant Cypress Crest II's motion, pursuant to CPLR §4406, which allows for a single post-trial motion and requires that every ground LEGAL/129831315.v1 1 of 13 FILED: RICHMOND COUNTY CLERK 09/13/2021 05:25 PM INDEX NO. 100835/2015 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 09/13/2021 for post-trial relief be raised in said single motion. Said motion must be submitted to the Court within 15 days of the verdict date. Therefore, the instant motion is timely. 4. The matter before this Court was a slip/fall on ice. 5. The motion before this Court is to respectfully request that the jury verdict which found no comparative negligence on the part of plaintiff, Sara Harden, as against the weight of the evidence, be set aside and a new trial ordered. Defendant Crest Condo II further requests that this Court modify the jury verdict to conform to the law of the case, a prior Court's holding stating that the subject walkway was jointly owned by the defendants, and that based upon the law of the case, as a matter of law, the apportionment of liability of the defendants is equal. It is also requested that the verdict be set aside due to juror misconduct as, upon information and belief, a juror admittedly stated that the jury made had up their minds concerning the liability in the case the first week of the trial. 6. The legal standard for determining a motion to set aside a verdict or judgment as against the weight of the evidence, is whether the jury could not have reached its verdict by any fair interpretation of the evidence. THE VERDICT 7. On September 2, 2021, at approximately 2:00 pm, the jury charge was read to the jury. The jury retired at 3:00 pm for their deliberations. At 3:40 pm, the jury sent a note to the Court that they had reached a verdict. -2- LEGAL/129831315.v1 2 of 13 FILED: RICHMOND COUNTY CLERK 09/13/2021 05:25 PM INDEX NO. 100835/2015 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 09/13/2021 8. During the course of their deliberations, the jury did not request any of the evidence in this case, nor did they request any read back of testimony. The jury further did not request a re- reading of the charge of negligence. 9. The jury verdict was a finding of 75% negligence on the part of defendant, Cypress Crest II, and 25% negligence on the part of defendant, Cypress Crest III. 10. The jury found 0% comparative negligence on the part of plaintiff, Sara Harden, despite her direct testimony as well as cross-examination by the defendants. 11. It is clear from the jury's decision, made after 40 minutes of deliberation, and after approximately 1½ weeks of trial testimony, that the jury simply ignored all of the evidence and by one juror’s word, upon information and belief, wanted to be "done". POINT I THE JURY IGNORED THE COMPARATIVE NEGLIGENCE OF THE PLAINTIFF 12. Plaintiff, Sara Harden, testified at trial. A copy of said testimony is annexed hereto as Exhibit "A". 13. Upon direct examination by her counsel, plaintiff was asked the following questions and gave the following answers: Q. Okay. When you decided to go to the right, can you describe to the jury the condition of that walkway just before you began to walk on it? -3- LEGAL/129831315.v1 3 of 13 FILED: RICHMOND COUNTY CLERK 09/13/2021 05:25 PM INDEX NO. 100835/2015 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 09/13/2021 A. It was a sheet of ice. It was a solid sheet of ice. There was maybe one or two patches where you could see the concrete but not concrete. Does that make sense? Q. You could see through the ice? A. Right. Q. Now was there any salt on the ground? A. No. Q. Did it appear as if the walkway had been salted at any time before the accident? A. Absolutely not. Q. Now, describe for the jury exactly what happened. A. I proceeded to exit my gate and go the right. I was watching as I walked. I got maybe about 20, 30 feet when my left leg slipped on the ice and started to slip out from under me. See Ex. A, p. 111, l. 25 – p. 112, l. 17. 14. It is clear, based upon plaintiff Sara Harden's direct testimony from her own attorney, that she saw what was there to be seen, an open and obvious icy condition if one is to believe her sworn testimony, and further that she made a conscious decision to walk on the ice. 15. It is apparent, based upon the jury's verdict, that they completely ignored plaintiff's sworn testimony in finding any comparative negligence on plaintiff for causing her own injury. 16. During cross-examination by your affirmant, the following questions were asked of plaintiff, Sara Harden: Q. Thank you. So you see the ice, correct? A. Yes. -4- LEGAL/129831315.v1 4 of 13 FILED: RICHMOND COUNTY CLERK 09/13/2021 05:25 PM INDEX NO. 100835/2015 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 09/13/2021 Q. And then you walked 20, 25 feet down that walkway, right? A. 20 to 30, correct. See Ex. A, p. 126, l. 14-18. 17. Furthermore, upon cross-examination of plaintiff by counsel for co-defendant, Cypress Crest III, the following series of questions were asked: Q. And did you look to your right -- A. Yes. Q. -- where the other pooling condition was? A. Yes. Q. And you could see that; is that correct? A. Correct. Q. And you've known about this condition in the walkway for years before this accident, correct? A. Yes. Q. And have you seen ice form there before? A. Yes. Q. And you've seen puddles there before? A. Yes. Q. And you walked towards that condition, is that correct on the date of the accident? A. Correct. Q. And you were looking at that condition on the day of the accident? A. Correct. -5- LEGAL/129831315.v1 5 of 13 FILED: RICHMOND COUNTY CLERK 09/13/2021 05:25 PM INDEX NO. 100835/2015 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 09/13/2021 Q. You looked at that condition as you approached it on the day of the accident? A. Yes. Q. And you stepped on that condition on the date of the accident? A. I didn't have a choice. See Ex. A, p. 158, l. 2 thru p. 159, l. 1 18. Upon re-cross examination by your affirmant, the plaintiff was asked the following questions and gave the following answers: Q. And did you testify to this jury that you didn't have a choice but to walk down that walkway? A. Correct. Q. Could you have not walked down it? Wouldn't that have been another choice if it was at (sic) dangerous and icy as you testified to this jury that it was? A. My daughter needed to go to school. See Ex. A, p. 172, l. 14 thru 21. 19. It is clear from this jury's verdict that they disregarded this entire line of questioning, as well as plaintiff’s sworn testimony, regarding the plaintiff's own comparative negligence. 20. No reasonable jury could have come to a more different conclusion then finding the plaintiff partially or totally at fault for her own negligence in making the conscious decision to admittedly walking on an icy and dangerous condition, which she stated she observed before walking on same. -6- LEGAL/129831315.v1 6 of 13 FILED: RICHMOND COUNTY CLERK 09/13/2021 05:25 PM INDEX NO. 100835/2015 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 09/13/2021 21. Based upon the evidence adduced at trial, the jury could reasonably conclude that the plaintiff's own actions solely contributed to her fall. 22. To sustain a determination that a jury verdict is not supposed by sufficient evidence, as a matter of law, there must be "no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial. See, Nicastro v. Park, 495 N.Y.S.2d 184 (2nd Dept. 1985) citing to Cohen v. Hallmark Cards, 410 N.Y.S.2d 282 (Ct. Appeals 1978). 23. A trial court may set aside a jury verdict and "direct that judgment be entered in favor of a party entitled to judgment as a matter of law" (CPLR §4404[a]). In order to find that a jury verdict is not supported by sufficient evidence as a matter of law, there must be "no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial. See, Yankovitch v. Fessel, 95 N.Y.S.3d 582 (2nd Dept. 2019) citing to Cohen, supra. 24. The plaintiff in the instant action gave sworn testimony to the jury stating that she walked on an icy walkway for 25-30 feet before she fell. The jury ignored the plaintiff's sworn testimony in finding no comparative negligence on her part for her conscious action. 25. It is against the weight of the evidence that this jury found no comparative negligence on the part of plaintiff. -7- LEGAL/129831315.v1 7 of 13 FILED: RICHMOND COUNTY CLERK 09/13/2021 05:25 PM INDEX NO. 100835/2015 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 09/13/2021 26. This is not a case where a jury was presented with conflicting testimony as to how an accident occurred. The plaintiff admittedly testified to walking on ice for 25-30 feet before this incident occurred. 27. A fair interpretation of the evidence at trial does not support the jury apportionment of liability to plaintiff at zero and thus, the verdict should be vacated in its entirety. 28. No rational jury would find the plaintiff to be comparative negligence free when, by plaintiff's own admission, she observed an open and obvious condition, the icy walkway, and then made a conscious decision to walk 25-30 feet on said icy walkway, when she was allegedly caused to slip and fall. 29. As such, the verdict of this jury should be set aside and a new trial so ordered. POINT II THE LAW OF THIS CASE IS JOINT OWNERSHIP 30. By Order dated March 1, 2019, the Honorable Thomas P. Aliotta ruled as a matter of law that the walkway between Cypress Crest II and Cypress Crest III was owned jointly between the two entities. (A copy of said Order is annexed hereto as Exhibit "B".) 31. No appeal or motion to reargue was ever taken from said Order. 32. Your affirmant understands that Cypress Crest II and Cypress Crest III are separate entities. Each was entitled to their own question of negligence on the jury verdict sheet. -8- LEGAL/129831315.v1 8 of 13 FILED: RICHMOND COUNTY CLERK 09/13/2021 05:25 PM INDEX NO. 100835/2015 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 09/13/2021 33. However, as a matter of law, the law of this case is joint ownership and any percentages of fault must be equally shared between Cypress Crest II and Cypress Crest III. 34. Your affirmant respectfully requests that this Honorable Court issue an Order determining that the negligence, if any, of the defendants is equal. They are the joint owners of the property and absent any showing to the contrary, it is the law of the case and cannot be altered by a jury finding. 35. Defendants Cypress Crest II and Cypress Crest III share any negligence equally, no matter what a jury finds. A jury is not empowered to change the law of the case. 36. While plaintiff's counsel was well within his right to ask the jury to apportion percentages during his summation, neither he nor the jury can interfere with the law of the case. 37. It is respectfully requested that this Court, based upon the law of the case, vacate that portion of the jury’s finding regarding percentages of liability, and rule as a matter of law, that liability, if any, of the defendants reflect the law of the case. POINT III JUROR MISCONDUCT 38. Defendant, Cypress Crest II, moves to have the jury verdict set aside on the ground of juror misconduct. 39. After the verdict was rendered in this action, in discussing this case with the jurors, Juror One, the foreperson, upon information and belief, stated words to the effect that the jury had -9- LEGAL/129831315.v1 9 of 13 FILED: RICHMOND COUNTY CLERK 09/13/2021 05:25 PM INDEX NO. 100835/2015 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 09/13/2021 their minds made up the first week of the trial. The juror further stated that they were "done" and that they were not going to come back the next day (to deliberate any further). Hence, the 40 minute verdict. 40. This Court, throughout the week and a half trial, repeatedly admonished the jurors each and every time they left the courtroom, not to discuss the case until it was submitted to them. 41. The jury clearly did not listen to and abide by the Court’s repetitive admonitions. 42. A defendant is entitled to have a jury verdict set aside on the grounds of juror misconduct where there was evidence that the jurors and alternate jurors discussed trial testimony, credibility of witnesses, and defendant's guilt or innocence before deliberations commenced. See, People v. Romano, 778 N.Y.S.2d 517 (2nd Dept. 2004). 43. This information regarding the premature deliberations amongst the jurors was only learned by your affirmant after the verdict was rendered. Had your affirmant known of this while still in the Court, I would have so advised the Court. 44. Should a Court learn during the course of a trial that premature deliberations had taken place, the Court must inquire into the extent, if any, that the jury has engaged in premature discussions of the case in violation of its duty. See, People v. Brown, 802 N.Y.S.2d 694 (2nd Dept. 2005). 45. The fact that a juror stated that they had their minds made up the first week of trial clearly established grounds for vacating the verdict in this case, and a new trial directed by the Court. - 10 - LEGAL/129831315.v1 10 of 13 FILED: RICHMOND COUNTY CLERK 09/13/2021 05:25 PM INDEX NO. 100835/2015 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 09/13/2021 46. It is respectfully requested that the Court direct Juror One, the foreperson on this jury, and if deemed necessary, all jurors who were sworn to hear this case and render a just verdict, to appear before this Court to discuss the conduct of the jury and answer questions from the attorney’s concerning comments that they had their minds made up the first week of the trial. 47. All counsel are entitled to know what the jurors were discussing amongst themselves regarding this case prior to this Court submitting this case to them to deliberate. 48. Contrary to this Court’s constant and repetitive instructions not to discuss this case before it was submitted to jury, based upon the comments allegedly made by the foreperson, the jurors in this case clearly ignored this Court admonitions. 49. In fairness to the defendants, a new trial on liability is warranted. WHEREFORE, it is respectfully requested that this Court, pursuant to CPLR §4106, issue an Order vacating the jury verdict in this case in its entirety, and directing a new trial on liability based upon the following: (a) the jury disregarding the plaintiff's sworn testimony regarding her own comparative negligence; (b) apparent juror misconduct as it appears the jury discussed the testimony of this case, prior to the case being submitted to them for deliberations, contrary to this Court’s admonitions or, in the alternative; (c) that this Court hold, as a matter of law to the case law of this case established by the Order of Justice Aliotto and direct that the defendants as co-owner’s of the property share equally in any liability imposed upon them by a jury; and - 11 - LEGAL/129831315.v1 11 of 13 FILED: RICHMOND COUNTY CLERK 09/13/2021 05:25 PM INDEX NO. 100835/2015 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 09/13/2021 (d) for such other and further relief as this Court may deem just and proper. Dated: Melville, New York September 13, 2021 Christopher J. Power Christopher J. Power - 12 - LEGAL/129831315.v1 12 of 13 FILED: RICHMOND COUNTY CLERK 09/13/2021 05:25 PM INDEX NO. 100835/2015 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 09/13/2021 WORD COUNT CERTIFICATION I, Christopher J. Power, Esq., certify that the defendants Post-Trial Affirmation in Support complies with the word count (excluding the caption, signature block and this certification) and page count limits as set forth in the Uniform Civil Rules for the Supreme Court Rule 202.8-b. The defendant's Post-Trial Affirmation in Support contains 2,534 words. Christopher J. Power Christopher J. Power, Esq. - 13 - LEGAL/129831315.v1 13 of 13