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TRIAL JUDGE SHOULD HAVE CONDUCTED AN INQUIRY AFTER RECEIVING A NOTE INDICATING THAT A JUROR COULD NOT CONTINUE, INSTEAD THE JUDGE REPLACED THE JUROR WITH AN ALTERNATE WITHOUT AN INQUIRY, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new trial, determined the trial court in this medical malpractice action should have conducted an inquiry before replacing a juror with an alternate:

In 2013, CPLR 4106 was amended to provide that a trial court may discharge a regular juror and replace that juror with an alternate juror, even after deliberations have begun, if the juror has “become[ ] unable to perform the duties of a juror” (CPLR 4106 … ). In determining whether discharge and replacement of a juror is appropriate, a trial court must, after receiving notice that a juror may not be able to perform his or her duty, make whatever inquiry is reasonably necessary to determine whether the juror should be discharged and replaced with an alternate juror … .

In this medical malpractice action, the Supreme Court received a note during deliberations that “a juror cannot come to a fair decision due to emotional distress.” The court, however, refused to conduct any inquiry as to the nature of the juror’s difficulty, and refused even to speak to the juror individually. Instead, over objection, it excused the juror and seated an alternate. The court’s failure to make adequate inquiry was error, requiring a new trial … . Garbie v Ahmad, 2019 NY Slip Op 00098, Second Dept 1-9-19

 

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