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ALTHOUGH SUPREME COURT CORRECTLY SET ASIDE THE VERDICT AS THE PRODUCT OF SUBSTANTIAL CONFUSION, SUPREME COURT DID NOT HAVE THE POWER TO “REINSTATE” A PRIOR VERDICT THAT HAD NOT BEEN REPORTED TO THE JUDGE.

The Second Department, reversing Supreme Court, determined Supreme Court did not have the power to “reinstate” a “verdict” that had not been recorded in open court. When the jury first announced they had a verdict, the court officer, without reporting the verdict to the judge, handed the verdict sheet back to the jurors, pointing to directions on the sheet. After the judge accepted a subsequent verdict, the court officer informed the judge of the prior “verdict” and his interaction with the jurors:

“[A] trial court has discretion to set aside a verdict which is clearly the product of substantial confusion among the jurors” … . Here, the Supreme Court providently exercised its discretion in setting aside the jury’s verdict on the basis that it was the product of substantial confusion. However, the court erred in attempting to “reinstate” the jury’s original verdict as reported by the court officer. ” A verdict is not recognized as valid and final until it is pronounced and recorded in open court'” … . Under these circumstances, upon setting aside the verdict, the court should have granted the branch of the defendant’s motion which was for a new trial … . Kitenberg v Gulmatico, 2016 NY Slip Op 07004, 2nd Dept 10-26-16

CIVIL PROCEDURE (ALTHOUGH SUPREME COURT CORRECTLY SET ASIDE THE VERDICT AS THE PRODUCT OF SUBSTANTIAL CONFUSION, SUPREME COURT DID NOT HAVE THE POWER TO “REINSTATE” A PRIOR VERDICT THAT HAD NOT BEEN REPORTED TO THE JUDGE)/VERDICTS (CIVIL, ALTHOUGH SUPREME COURT CORRECTLY SET ASIDE THE VERDICT AS THE PRODUCT OF SUBSTANTIAL CONFUSION, SUPREME COURT DID NOT HAVE THE POWER TO “REINSTATE” A PRIOR VERDICT THAT HAD NOT BEEN REPORTED TO THE JUDGE)/JUROR CONFUSION (VERDICTS, CIVIL, ALTHOUGH SUPREME COURT CORRECTLY SET ASIDE THE VERDICT AS THE PRODUCT OF SUBSTANTIAL CONFUSION, SUPREME COURT DID NOT HAVE THE POWER TO “REINSTATE” A PRIOR VERDICT THAT HAD NOT BEEN REPORTED TO THE JUDGE)

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THE DEFENDANTS DID NOT RAISE A DEFECT IN SERVICE AS AN AFFIRMATIVE DEFENSE; THE JUDGE SHOULD NOT HAVE RAISED THE ISSUE SUA SPONTE AND DISMISSED THE PROCEEDING ON THAT GROUND (SECOND DEPT). ​
Security at Homeless Shelter Is a Governmental Function–City Immune from Suit by Plaintiff Who Was Assaulted at the Shelter/Private Security Company Not Immune/Plaintiff Was a Third-Party Beneficiary of the Contract Between the Department of Homeless Services and the Security Company/Security Company Did Not Demonstrate It Was Free from Negligence and the Assault Was Not Foreseeable
QUESTION OF FACT RAISED WHETHER DECEDENT REVOKED A LOST WILL.
ALTHOUGH DEFENDANT IN THIS FORECLOSURE ACTION DID NOT ASSERT THE AFFIRMATIVE DEFENSES OF LACK OF STANDING AND LACK OF PERSONAL JURISDICTION IN THE ANSWER, THE DEFENSES WERE NOT WAIVED AND THE MOTION TO AMEND THE ANSWER SHOULD HAVE BEEN GRANTED; EVEN THOUGH THE STATUTE PROVIDING THAT THE LACK OF STANDING DEFENSE WAS NOT WAIVED WAS NOT ENACTED AT THE TIME THE MOTION WAS DECIDED, THE APPELLATE COURT CAN APPLY THE LAW AS IT EXISTS AT THE TIME OF THE APPELLATE DECISION (SECOND DEPT).
PLAINTIFF ALLEGED CONSTRUCTION WORK ON DEFENDANT’S PROPERTY CAUSED WATER TO ENCROACH ON PLAINTIFF’S PROPERTY; THE NEGLIGENCE ACTION WAS TIME-BARRED BECAUSE THE CONSTRUCTION WORK WAS DONE MORE THAN THREE YEARS BEFORE THE ACTION WAS FILED; THE RELATED NUISANCE AND TRESPASS ACTIONS WERE NOT TIME-BARRED BECAUSE THEY MAY CONSTITUTE “CONTINUING WRONGS” (SECOND DEPT). ​
ALTHOUGH THE EVIDENCE WAS DEEMED LEGALLY SUFFICIENT TO SUPPORT THE CONVICTIONS STEMMING FROM AN ATTACK ON THE COMPLAINANT, THOSE CONVICTIONS WERE DEEMED AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF THE WEAKNESS OR ABSENCE OF IDENTIFICATION EVIDENCE (SECOND DEPT).
DEFENDANTS’ REPEATED FAILURES TO COMPLY WITH DISCOVERY DEMANDS WARRANTED STRIKING THE ANSWER AND COUNTERCLAIMS; SUPREME COURT HAD IMPOSED LESS SEVERE SANCTIONS, BUT THE APPELLATE COURT REVERSED AND IMPOSED THE ULTIMATE SANCTION–A RARE EXAMPLE OF CONDUCT DEEMED “WILLFUL AND CONTUMACIOUS” (SECOND DEPT).

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