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THE REFUSAL OF DEFENDANT’S REQUEST TO POLL THE JURY REQUIRED A NEW TRIAL (FOURTH DEPT).

The Fourth Department, reversing the judgment, determined defendant’s request to poll the jury should not have been denied:

Plaintiff commenced this action seeking damages for, inter alia, assault and battery, and in his amended answer defendant asserted counterclaims for, inter alia, defamation. The matter proceeded to trial, and now plaintiff appeals and defendant cross-appeals from an order and judgment of Supreme Court that denied the parties’ respective motions to set aside portions of the jury verdict and, upon the jury verdict, awarded damages both to plaintiff and to defendant. We reverse.

We agree with defendant on his cross appeal that the court erred in denying his request to poll the jury. “A party has an absolute right to poll the jury, and a court’s denial of that right mandates reversal and a new trial” … . We therefore reverse the order and judgment and remit the matter to Supreme Court for a new trial … . Fitzgerald v Kula, 2021 NY Slip Op 04452, Fourth Dept 7-16-21

 

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