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ANINA H. MONTE
PARTNER
DIRECT DIAL: (516) 712-3141
E-MAIL: anina.monte@mcblaw.com
June 8, 2023
Via E-Mail: RSchaefe@nycourts.gov
Hon. C. Stephen Hackeling, J.S.C.
Suffolk County Supreme Court
One Court Street
Riverhead, New York 11901
Re: xxxxxxxx, xxxxxx V. RONALD J. TADEO, M.D.
Index No. 026910/2012
MCB File No. 00033-087918
Dear Justice Hackeling:
I write to respond to Mr. xxxxxxx’s letter brief and application to disqualify Juror #3 in this
action, based upon the jury note and voir dire offered by Alternate #3. It is the defendant’s position
that there has been no tainting of the jury, no prejudice to any party, or action by the juror to require
removal or a mistrial.
As a basis for their argument, plaintiff points the Court to several cases, arguing that the
precedent supports the idea that under these circumstances there is undue prejudice and the jury
has been tainted. A careful reading of the case law demonstrates that this is not a circumstance
that would give rise to the level of taint and prejudice, which would require either removal of Juror
#3, or a mistrial.
Preliminarily, please allow me to address Your Honor’s question: what is the standard to
use in determining whether the jury misconduct rises to a level that would require the Court to
remove the juror? The Court of Appeals has addressed the standard and test that needs to be
employed in a circumstance of potential jury misconduct. In Alford. v Sventek, the Court
considered if the unauthorized viewing of the motor vehicle accident scene was juror misconduct
sufficient to warrant a mistrial and setting aside the verdict. Although the Court noted that in those
AHM/md
4884051
June 8, 2023
Page 2
circumstances (when the juror took it upon himself to visit the scene) was clear jury misconduct,
there was no evidence that the misconduct in any way influenced the jury’s verdict. 53 N.Y. 2d
743 (1981). In Alford, the Court specifically noted that the determination of jury misconduct is
case by case. Id at 745. The Court noted that there is no ironclad rule concerning juror misconduct.
Id (emphasis added). The verdict in that instance was a 5-1 in favor of the defendant and the juror
who conducted the outside visit to the scene of the accident was the only juror to render a verdict
in favor of the plaintiff. The Court ruled that there could be no prejudice for the conduct, because
the juror who engaged in the misconduct was the only one voting for the party trying to overturn
the verdict. The Court of Appeals reiterated the general principal that the trial court should
continue to admonish the jury of their duty and not to view the scene, observe outside evidence or
talk amongst themselves prior to deliberations. Id at 745. Such admonishment should be
undertaken to remain vigilant and to prevent prejudice to either side.
The Appellate Courts have noted that the determination is up to the trial court’s discretion,
and absent a showing that there has been an abuse of discretion, the decision of the trial court
should not be disturbed. See Holland v Blake, 38 A.D.2d 344 (3rd Dept) (Finding that the trial
court did not abuse discretion in allowing a juror to remain on the panel, and to deliberate, even
though the parties learned after deliberations had started that the juror was represented by the
defendant’s attorney on an unrelated civil matter, a fact unknown at the time of voir dire.)
Plaintiff in the instant matter contends that she is prejudiced by comments reportedly made
by one juror in front of the entire panel of jurors, during a break. As the Court is well aware, after
this was brought to Your Honor’s attention, a full voir dire of the entire panel was undertaken, one
by one. In each instance, Your Honor specifically asked each juror if the evidence had been
discussed by anyone in front of them, prior to deliberations. None of the jurors, including Juror
#3, indicated that the evidence had been discussed. Even Alternate #3 was careful in the manner
in which she informed the Court. There was no evidence discussed, and she merely noted that
there was an insensitive comment made by one juror to others, but that no other juror engaged in
the conversation, which was quickly turned to a different topic. Based upon the record before the
Court there has been no jury misconduct, consideration of information that is not in evidence, or
action by the jury that would give rise to disqualification of the juror or a mistrial.
At most, this comment was an insensitive remark, which may not even rise to the level of
misconduct. Several cases are helpful and instructive with similar facts. In LaChapelle v.
McLaughlin, a civil case, during a recess a juror approached the defendant’s attorney to ask for
help with her car, which had a dead battery. Defense counsel quickly reminded the juror they
could not interact, and the conversation ended there. The Second Department specifically noted
that not every instance of juror misconduct leads to the conclusion that substantial justice has not
been effected. The Court reiterated the Alford standard, and noted that ‘there is no ironclad rule
concerning juror misconduct’ and that each case must be determined and examined on a case by
case basis. Citing Wiener v. Davidson, 61 AD2d 1030, the LaChapelle Court noted that not every
irregularity in the conduct of a jury requires a new trial. The misconduct must be such as to
prejudice a party in his substantial rights. See LaChapelle v. McLoughlin, 68 A.D.3d 824 (2nd Dept
2009)(citing Wiener v. Davidson, 61 AD2d 1030).
4884051
June 8, 2023
Page 3
Highly instructive to the Court is Taylor v. Port Authority of New York, which has a similar
circumstance as the one at the case at bar. Taylor was a slip and fall case, in which the plaintiff
alleged that she had fallen on a puddle of water. During a break in deliberations, the jury saw an
unknown woman in the courthouse who was laying on the ground. One of the jurors remarked to
the panel that there was no water on the floor. Upon learning of this, each juror was asked if this
event would unduly influence them, to which they responded it would not. The Second
Department in Taylor noted that the decision to grant a mistrial was within the discretion of the
trial court. The decision is made case by case, based upon the facts, which must be examined to
determine ‘the nature of the material placed before the jury and the likelihood that prejudice would
be engendered’ See Taylor v Port Authority of New York, 202 A.D.2d 414 (2nd Dept 1994). The
Second Department went on to note that, contrary to the cases cited by the plaintiff, the incident
was one of an everyday experience that confront everyone. There was no act by the juror to obtain
evidence outside of the trial, nor an undisclosed bias, nor a deliberate effort to add to the evidence
presented, or to use outside methods to verify information presented. Just like Your Honor has
done in the instant matter, the trial court in Taylor carefully ascertained that the incident would not
influence the jury’s deliberations, and the Appellate Division agreed.
Examples of similar everyday events like this have been brought to the Court’s attention
in other cases. More recently, the Second Department once again determined that not every
irregularity in jury conduct rises to the level of undue influence, prejudice or impropriety. Once
inquiry is made and the trial court is satisfied that the jury has not been biased, the determination
is rarely disturbed. See Russo v Mignola, 142 A.D. 3d 1064 (2nd Dept 2016).
Many of the cases and examples cited by Mr. xxxxxxx in his letter are of jury misconduct
that is vastly different than the one presented in our case:
 In Campbell v. Towber, et al, the juror returned to the plaintiff’s home with her,
consoled her, and comforted her. 261 NYS 2d 458 (Kings Co. 1965). The Court
held that the juror’s conduct was plainly in violation of the explicit and repeat
instructions of the Court.
ï‚· In Maslinski v. Brunswick Hospital Center, the juror did outside research into the
definition of malpractice and then, armed with the outside research, entered into the
jury deliberations presenting the outside evidence to the other jurors. 118 A.D. 2d
834 (2nd Dept 1986).
ï‚· In Ryan v Orange County, a juror used outside knowledge about damages and
disseminated that to the jury from an outside source, not in evidence, to educate
and persuade the jury as to damages. 227 A.D.2d 609(2nd Dept 1996).
ï‚· In Fitzgibbons v. New York State University Construction Fund, a juror used their
personal experience with workers’ compensation to dissuade the jury from
awarding damages. The Court held that the use of outside information and facts
not in evidence during deliberations was improper and prejudicial. 177 A.D.2d
1033 (4th Dept 1991).
It is the defendant’s position that this Court has conducted a proper inquiry in the comment
that was reported by Alternate #3. None of the other jurors have indicated any bias, undue
influence, or impairment in their impartiality. Your Honor has continued to remind them of their
4884051
June 8, 2023
Page 4
oath and the rules of jury service and it is the defendant’s position that this admonishment and
continued admonishment is sufficient to address the concerns of the alternate and ensure that
substantial justice is afforded to both parties in this case. Neither the removal of Juror #3 or a
mistrial is warranted under these circumstances.
Respectfully requested,
MARTIN CLEARWATER & BELL LLP
Anina H. Monte
cc: xxxxxxxxxxxxxx, Esq.
Via E-Mail: JCiaccio@NapoliLaw.com
4884051
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www.mcblaw.com ANINA H. MONTE PARTNER DIRECT DIAL: (516) 712-3141 E-MAIL: anina.monte@mcblaw.com June 8, 2023 Via E-Mail: RSchaefe@nycourts.gov Hon. C. Stephen Hackeling, J.S.C. Suffolk County Supreme Court One Court Street Riverhead, New York 11901 Re: xxxxxxxx, xxxxxx V. RONALD J. TADEO, M.D. Index No. 026910/2012 MCB File No. 00033-087918 Dear Justice Hackeling: I write to respond to Mr. xxxxxxx’s letter brief and application to disqualify Juror #3 in this action, based upon the jury note and voir dire offered by Alternate #3. It is the defendant’s position that there has been no tainting of the jury, no prejudice to any party, or action by the juror to require removal or a mistrial. As a basis for their argument, plaintiff points the Court to several cases, arguing that the precedent supports the idea that under these circumstances there is undue prejudice and the jury has been tainted. A careful reading of the case law demonstrates that this is not a circumstance that would give rise to the level of taint and prejudice, which would require either removal of Juror #3, or a mistrial. Preliminarily, please allow me to address Your Honor’s question: what is the standard to use in determining whether the jury misconduct rises to a level that would require the Court to remove the juror? The Court of Appeals has addressed the standard and test that needs to be employed in a circumstance of potential jury misconduct. In Alford. v Sventek, the Court considered if the unauthorized viewing of the motor vehicle accident scene was juror misconduct sufficient to warrant a mistrial and setting aside the verdict. Although the Court noted that in those AHM/md 4884051 June 8, 2023 Page 2 circumstances (when the juror took it upon himself to visit the scene) was clear jury misconduct, there was no evidence that the misconduct in any way influenced the jury’s verdict. 53 N.Y. 2d 743 (1981). In Alford, the Court specifically noted that the determination of jury misconduct is case by case. Id at 745. The Court noted that there is no ironclad rule concerning juror misconduct. Id (emphasis added). The verdict in that instance was a 5-1 in favor of the defendant and the juror who conducted the outside visit to the scene of the accident was the only juror to render a verdict in favor of the plaintiff. The Court ruled that there could be no prejudice for the conduct, because the juror who engaged in the misconduct was the only one voting for the party trying to overturn the verdict. The Court of Appeals reiterated the general principal that the trial court should continue to admonish the jury of their duty and not to view the scene, observe outside evidence or talk amongst themselves prior to deliberations. Id at 745. Such admonishment should be undertaken to remain vigilant and to prevent prejudice to either side. The Appellate Courts have noted that the determination is up to the trial court’s discretion, and absent a showing that there has been an abuse of discretion, the decision of the trial court should not be disturbed. See Holland v Blake, 38 A.D.2d 344 (3rd Dept) (Finding that the trial court did not abuse discretion in allowing a juror to remain on the panel, and to deliberate, even though the parties learned after deliberations had started that the juror was represented by the defendant’s attorney on an unrelated civil matter, a fact unknown at the time of voir dire.) Plaintiff in the instant matter contends that she is prejudiced by comments reportedly made by one juror in front of the entire panel of jurors, during a break. As the Court is well aware, after this was brought to Your Honor’s attention, a full voir dire of the entire panel was undertaken, one by one. In each instance, Your Honor specifically asked each juror if the evidence had been discussed by anyone in front of them, prior to deliberations. None of the jurors, including Juror #3, indicated that the evidence had been discussed. Even Alternate #3 was careful in the manner in which she informed the Court. There was no evidence discussed, and she merely noted that there was an insensitive comment made by one juror to others, but that no other juror engaged in the conversation, which was quickly turned to a different topic. Based upon the record before the Court there has been no jury misconduct, consideration of information that is not in evidence, or action by the jury that would give rise to disqualification of the juror or a mistrial. At most, this comment was an insensitive remark, which may not even rise to the level of misconduct. Several cases are helpful and instructive with similar facts. In LaChapelle v. McLaughlin, a civil case, during a recess a juror approached the defendant’s attorney to ask for help with her car, which had a dead battery. Defense counsel quickly reminded the juror they could not interact, and the conversation ended there. The Second Department specifically noted that not every instance of juror misconduct leads to the conclusion that substantial justice has not been effected. The Court reiterated the Alford standard, and noted that ‘there is no ironclad rule concerning juror misconduct’ and that each case must be determined and examined on a case by case basis. Citing Wiener v. Davidson, 61 AD2d 1030, the LaChapelle Court noted that not every irregularity in the conduct of a jury requires a new trial. The misconduct must be such as to prejudice a party in his substantial rights. See LaChapelle v. McLoughlin, 68 A.D.3d 824 (2nd Dept 2009)(citing Wiener v. Davidson, 61 AD2d 1030). 4884051 June 8, 2023 Page 3 Highly instructive to the Court is Taylor v. Port Authority of New York, which has a similar circumstance as the one at the case at bar. Taylor was a slip and fall case, in which the plaintiff alleged that she had fallen on a puddle of water. During a break in deliberations, the jury saw an unknown woman in the courthouse who was laying on the ground. One of the jurors remarked to the panel that there was no water on the floor. Upon learning of this, each juror was asked if this event would unduly influence them, to which they responded it would not. The Second Department in Taylor noted that the decision to grant a mistrial was within the discretion of the trial court. The decision is made case by case, based upon the facts, which must be examined to determine ‘the nature of the material placed before the jury and the likelihood that prejudice would be engendered’ See Taylor v Port Authority of New York, 202 A.D.2d 414 (2nd Dept 1994). The Second Department went on to note that, contrary to the cases cited by the plaintiff, the incident was one of an everyday experience that confront everyone. There was no act by the juror to obtain evidence outside of the trial, nor an undisclosed bias, nor a deliberate effort to add to the evidence presented, or to use outside methods to verify information presented. Just like Your Honor has done in the instant matter, the trial court in Taylor carefully ascertained that the incident would not influence the jury’s deliberations, and the Appellate Division agreed. Examples of similar everyday events like this have been brought to the Court’s attention in other cases. More recently, the Second Department once again determined that not every irregularity in jury conduct rises to the level of undue influence, prejudice or impropriety. Once inquiry is made and the trial court is satisfied that the jury has not been biased, the determination is rarely disturbed. See Russo v Mignola, 142 A.D. 3d 1064 (2nd Dept 2016). Many of the cases and examples cited by Mr. xxxxxxx in his letter are of jury misconduct that is vastly different than the one presented in our case:  In Campbell v. Towber, et al, the juror returned to the plaintiff’s home with her, consoled her, and comforted her. 261 NYS 2d 458 (Kings Co. 1965). The Court held that the juror’s conduct was plainly in violation of the explicit and repeat instructions of the Court.  In Maslinski v. Brunswick Hospital Center, the juror did outside research into the definition of malpractice and then, armed with the outside research, entered into the jury deliberations presenting the outside evidence to the other jurors. 118 A.D. 2d 834 (2nd Dept 1986).  In Ryan v Orange County, a juror used outside knowledge about damages and disseminated that to the jury from an outside source, not in evidence, to educate and persuade the jury as to damages. 227 A.D.2d 609(2nd Dept 1996).  In Fitzgibbons v. New York State University Construction Fund, a juror used their personal experience with workers’ compensation to dissuade the jury from awarding damages. The Court held that the use of outside information and facts not in evidence during deliberations was improper and prejudicial. 177 A.D.2d 1033 (4th Dept 1991). It is the defendant’s position that this Court has conducted a proper inquiry in the comment that was reported by Alternate #3. None of the other jurors have indicated any bias, undue influence, or impairment in their impartiality. Your Honor has continued to remind them of their 4884051 June 8, 2023 Page 4 oath and the rules of jury service and it is the defendant’s position that this admonishment and continued admonishment is sufficient to address the concerns of the alternate and ensure that substantial justice is afforded to both parties in this case. Neither the removal of Juror #3 or a mistrial is warranted under these circumstances. Respectfully requested, MARTIN CLEARWATER & BELL LLP Anina H. Monte cc: xxxxxxxxxxxxxx, Esq. Via E-Mail: JCiaccio@NapoliLaw.com 4884051