Mills turned down the plaintiff’s request to poll the jurors because there had been no indication that any of the jurors objected to the verdict read by the foreman in open court at the conclusion of the contentious three-week trial. Informed in a subsequent motion that a litigant has an “absolute right” to poll the jury, Mills later thought better of it and concluded that she had no choice but to vacate the verdict, forcing the defendants to face the prospect of a new trial.

The Appellate Division ruling spared them that necessity. “Setting aside this verdict simply and solely because the jury was not polled -- when it is abundantly clear that polling would have made no difference in the result -- would, under these facts, lead to a result which by any measure is unconscionable,” the majority declared. “To deprive defendants of the benefit of this verdict - one that was fairly earned and entered - for an error not of their making or one for which they bear any responsibility, would, on these facts, be grossly unfair.”
 
Two dissenters on the appellate panel spoke up for Mills, at least to the extent of endorsing her attempt to make good on her mistake. A litigant does indeed have an absolute right to poll the jurors before judgment is entered and there was no reason to depart from that “bedrock principle” in this case, the dissenters said. Mills, after all, had sarcastically brushed aside the plaintiff’s request after the verdicts were announced by saying, “All of the responses were unanimous. You want to hear each one say that? It really is not necessary." Mills then sent the litigants and jurors on their way. That was a “fundamental and egregious error which requires a new trial,” whatever the cost to the defendants, concluded Justice James Catterson, who wrote the dissenting opinion, which was joined by Justice Joseph Sullivan. Duffy v. Vogel (December 20)

OTHER NOTABLE REVERSALS

NEW YORK COUNTY

REAL ESTATE: You’d think Justice Shirley Werner Kornreich was sending New York back to the Dark Ages with her ruling on a marital property issue, to hear the majority of an Appellate Division panel tell it. Kornreich, according to the majority opinion reversing her ruling, took a wife’s separately acquired and owned units in a cooperative building where she maintained a medical practice and “magically converted [them] into one jointly-owned [marital] property without any conveyance in writing but merely by appellant-husband's statement.” The ruling allowed the cooperative board to enforce a house rule barring the wife from continuing to access her units through the building’s lobby and requiring her and her patients instead to reach her office by passing through units where her husband maintained a medical practice of his own. “[I]t is particularly egregious for [Kornreich] to have supported [her] determination of joint ownership by reference to purported judicial admissions of the appellant's husband in which he allegedly swore under oath that he owned the shares of all six units,” the majority said. Lest anyone think Kornreich believes a husband can seize his wife’s property simply by telling a court he owns it, a dissenting justice came to the trial judge’s defense. Far from making a sweeping new pronouncement about marital property law, Kornreich focused on a factual issue peculiar to this particular case that the majority ignored, the dissenter said, namely “what [she] perceived as a deliberate attempt to deceive the court by the married parties.” In that context, Kornreich had good reason to consider “contradictory judicial admissions made by plaintiff, and her husband, as well as other documentary evidence,” which cast doubt on their claim that the office units and corporate entities that occupied them were separately owned, the dissenter insisted, to no avail. Dhamoon v. 230 South Apartments, Inc. (December 27)

FAIR TRIAL: Justice William A. Wetzel properly kicked the defense attorney for Roger Thomas off the case because of his “prolonged unavailability for trial.” But Wetzel committed an error that fatally tainted Thomas’s assault conviction when he immediately replaced the attorney with assigned counsel chosen by him. Wetzel assigned the attorney to the case, despite Thomas’s “unequivocal request to retain counsel of his choice,” and despite the fact that there was no evidence that allowing him to pick his own lawyer would cause any unreasonable delay. That wasn’t Wetzel’s only reversible error, the Appellate Division said. The conviction had to be overturned for the additional reason that Wetzel denied the new counsel's request for a competency examination despite strong indications, which emerged during Wetzel’s own extensive colloquy with Thomas, that he was not mentally fit for trial. People v. Thomas (January 3)

EMPLOYMENT: The Appellate Division tossed out a $2.5 million disability discrimination award handed to Kathryn Jordan by Justice Rolando T. Acosta after a jury trial.  According to the appellate opinion, Jordan lied about why she was using a cane when she was hired by an advertising firm, attributing it to a skiing accident when in fact she had multiple sclerosis. She claimed she was teased by supervisors about the cane but made no formal complaint about it -- until she was terminated about a year after her hiring when her firm merged with another company. She sued for disability discrimination, resulting in the big verdict. The award was vacated by the Appellate Division, which granted the defendant’s motion for judgment notwithstanding the jury verdict, in light of the “overwhelming and consistent evidence of financial reasons” for the layoffs of Jordan and other employees following the merger and the loss of major client accounts. Jordan v. Bates Advertising Holdings, Inc. (December 27)

SEARCH: For the second time in two weeks, Justice Budd G. Goodman was reversed for denying a drug defendant's motion to suppress evidence without even giving the defendant a hearing.  The Appellate Division held in abeyance the judgment convicting the defendant of selling drugs, pending a hearing on his motion to suppress evidence. People v. Joyner (December 27)

KINGS COUNTY

CONTRACT: Justice Martin Solomon went too easy for the Appellate Division’s liking on a contractor that stonewalled the city school construction authority in a suit accusing the authority of breach of contract. The construction firm’s owners repeatedly failed to show up for depositions about the work they peformed, which the city claimed was deficient. Solomon responded by precluding the witnesses from testifying at trial. The appellate panel dismissed that sanction as an inadequate slap on the wrist, which failed to account for the plaintiff's “flat-out refusal” on two occasions to produce witnesses whose testimony the city needed to prepare its defense. The appellate panel imposed what it regarded as a more appropriate sanction: an order that will dismiss the suit with prejudice unless the plaintiff coughs up the witnesses for a deposition within 45 days. Trataros Construction, Inc. v. New York City School Construction Authority (December 26)

QUEENS COUNTY

FAMILY: It is not often that an appellate panel reverses a Family Court judge’s finding of child abuse, particularly when there is no question that a child has been seriously injured in the home and the parents can’t explain why. A divided panel did just that, however, in a case that came before Justice Marybeth Richroath, who was reversed twice last year in abuse cases. The child at the center of the recent case was hospitalized for a week with a serious burn, apparently caused by a hot or caustic liquid that spilled onto his head and face. Unsatisfied that the father, identified as Eric, was unable to explain the accident, which he said occurred when he was in another room, Richroath concluded that he was at fault for the abuse. According to three of the four judges on the Appellate Division, that ruling threatened to turn the “statutory inference” that a child’s caretaker must have been responsible for unexplained injuries into an “irrebutable presumption” of culpability. The majority found that Eric was credible and the statutory inference of fault was rebutted by a plausible explanation for how the injury could have occurred accidentally. As investigators learned, another woman who lived in the home kept a thermos in the kitchen filled with hot water for formula, and that could have cause the baby’s burns, the majority concluded. One dissenter on appellate panel sided with Richroath and chided the majority for granting Eric’s motion to dismiss the abuse petition. Given the lingering mysteries surrounding the accident, summary judgment was inappropriate, the dissenter said. Matter of Christopher Anthony M. v. Flor M. M. (December 26)

In another ruling on the same day, the Appellate Division also reversed Justice Barbara Salinitro for erring on the side of overprotecting a child. She suspended supervised visitation between the parents and their two children, pending adjudication of other unspecified issues, even though, as the appellate panel saw it, there was no evidence that continued supervised visitation would be detrimental to the children. Salinitro was reversed three times last year for too hastily brushing aside charges of child abuse. Matter of Matthew Donald R. v. Stacey R. (December 26)

TORT: Justice Peter O'Donoghue must be wondering what part of “sole” does the Appellate Division not understand. Eric Sneddon, the plaintiff in a product-liability case, had previously prevailed in a personal injury suit against the driver and owner of a Nissan Pathfinder that suddenly accelerated and hit him while the driver was attempting to park. The judgment in that case declared that the driver's negligence was the "sole proximate cause" of the Sneddon's injuries. Two years later, however, Sneddon filed a second suit against the vehicle’s manufacturer and dealer, who were not parties to the original action, seeking to blame the accident on a defective design and negligent repair. O’Donoghue thought the second suit was precluded by the judgment that ended the first suit, but a unanimous panel of the Appellate Division disagreed. Despite the language in the judgment, the only necessary determination in the first case was whether the driver's negligence was “a proximate cause of the infant plaintiff's injury, to which the infant plaintiff did not contribute.” The issues raised in the new case are “discrete and not identical,” the appellate panel concluded. Sneddon v. Koeppel Nissan Inc. (December 26)