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Court Did Not Conduct an Adequate Investigation Into the Allegation of Improper Outside Influence on the Jury Before Granting Plaintiff’s Motion to Set Aside the Verdict—Matter Sent Back for an Evidentiary Hearing

The Fourth Department determined Supreme Court did not conduct an adequate investigation of alleged outside influence upon the jurors before granting plaintiff's motion to set aside the verdict.  There was an allegation a person who worked for an insurance company which insured some of the defendants was “stalking” the jury during the trial:

It is well settled that the decision whether to grant a motion for a new trial pursuant to CPLR 4404 (a) is committed to the trial court's discretion and will not be disturbed absent an abuse of that discretion … . Here, we agree with defendants that the court abused its discretion in the manner in which it investigated and determined the issue whether there had been improper outside influence on the jury that “was such as would be likely . . . to influence the verdict” … . Shortly after the trial had concluded and the jury was discharged, the court received notice of an allegation from one juror that a person attending the trial had been “stalking” the impaneled jurors on lunch breaks and during other recess periods. The juror described the individual's behavior as “creepy.” It was later learned that the individual was a representative of an insurance company monitoring the progress of the trial because it insured many of the defendants. As a result of the “stalking” allegation, the court conducted its own investigation and ultimately set aside the verdict, which had been entirely in defendants' favor, and ordered a new trial. We agree with defendants that the court abused its discretion in conducting an in camera interview of the complaining juror without notifying counsel, without seeking counsels' consent to that procedure …, and without providing counsel with an opportunity to be heard or to participate, even in some restricted manner, in the interview of the juror … . Further, the court limited its investigation to one juror, and we conclude that the court abused its discretion in failing to conduct a more expanded investigation, including, at a minimum, conducting an interview of all of the jurors … . Lastly, the court abused its discretion in prohibiting counsel from contacting any jurors until after plaintiff's motion to set aside the verdict was decided. This unnecessary prohibition essentially precluded defendants from obtaining and submitting any meaningful opposition to plaintiff's motion, the practical result being that the granting of plaintiff's motion was a foregone conclusion. Varano v Forba Holdings LLX 2015 NY Slip OP 01090, 4th Dept 2-6-15


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