Echostar Satellite L.L.C. v. ESPN, Inc.

Appellate Division of the Supreme Court of New York

Echostar Satellite L.L.C. v. ESPN, Inc.

105 A.D.3d 420, 961 N.Y.S.2d 471

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 2, 2013

StatusPublished

This text of 105 A.D.3d 420 (Echostar Satellite L.L.C. v. ESPN, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Echostar Satellite L.L.C. v. ESPN, Inc., 105 A.D.3d 420, 961 N.Y.S.2d 471 (N.Y. Ct. App. 2013).

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Opinion

Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered November 18, 2011, which denied plaintiffs motion for judgment notwithstanding the verdict, and order, same court and Justice, entered December 16, 2011, which denied plaintiffs [421]*421motion to set aside the verdict and for a new trial, unanimously affirmed, without costs.

The court properly denied the motion to set aside the verdict on the ground of juror misconduct. Although the court did not authorize the jurors to take notes during trial, plaintiff failed to demonstrate that it had suffered any prejudice resulting from one juror’s preparation of notes at home and use of those notes during deliberations (see Alford v Sventek, 53 NY2d 743, 745 [1981]). Indeed, plaintiff failed to submit an affidavit from any juror regarding the effect of the notes. Although plaintiff’s counsel’s affirmation stated that other jurors indicated that one juror had used her notes during deliberations, the jurors did not indicate that the notes had swayed the jury’s decision. The court properly denied plaintiffs request for a hearing to assess the effect, if any, the notes had on the deliberations. Such a hearing should “not be undertaken except in extraordinary circumstances” (People v Rodriguez, 71 NY2d 214, 218 n 1 [1988]), which are not present here.

Plaintiffs claim that the court erred in delivering a confusing response to a jury question is unpreserved (see CPLR 4110-b; Martinez v Te, 75 AD3d 1, 5 [1st Dept 2010]), and we decline to review it in the interests of justice. Were we to review it, we would reject it. By reading the instructions previously given to the jury on the issue, the court conveyed the germane legal principles to be applied in the case (see e.g. Mercy Community Hosp. v Cannon Design, 235 AD2d 405, 405-406 [2d Dept 1997]). Moreover, plaintiff made no showing that the jury was substantially confused by the court’s response, especially since the jury made no further requests for clarification after the court had answered the question (see Martinez, 75 AD3d at 7).

Concur— Mazzarelli, J.E, Moskowitz, DeGrasse, Feinman and Clark, JJ.

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Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered November 18, 2011, which denied plaintiffs motion for judgment notwithstanding the verdict, and order, same court and Justice, entered December 16, 2011, which denied plaintiffs [421]*421motion to set aside the verdict and for a new trial, unanimously affirmed, without costs.

The court properly denied the motion to set aside the verdict on the ground of juror misconduct. Although the court did not authorize the jurors to take notes during trial, plaintiff failed to demonstrate that it had suffered any prejudice resulting from one juror’s preparation of notes at home and use of those notes during deliberations (see Alford v Sventek, 53 NY2d 743, 745 [1981]). Indeed, plaintiff failed to submit an affidavit from any juror regarding the effect of the notes. Although plaintiff’s counsel’s affirmation stated that other jurors indicated that one juror had used her notes during deliberations, the jurors did not indicate that the notes had swayed the jury’s decision. The court properly denied plaintiffs request for a hearing to assess the effect, if any, the notes had on the deliberations. Such a hearing should “not be undertaken except in extraordinary circumstances” (People v Rodriguez, 71 NY2d 214, 218 n 1 [1988]), which are not present here.

Plaintiffs claim that the court erred in delivering a confusing response to a jury question is unpreserved (see CPLR 4110-b; Martinez v Te, 75 AD3d 1, 5 [1st Dept 2010]), and we decline to review it in the interests of justice. Were we to review it, we would reject it. By reading the instructions previously given to the jury on the issue, the court conveyed the germane legal principles to be applied in the case (see e.g. Mercy Community Hosp. v Cannon Design, 235 AD2d 405, 405-406 [2d Dept 1997]). Moreover, plaintiff made no showing that the jury was substantially confused by the court’s response, especially since the jury made no further requests for clarification after the court had answered the question (see Martinez, 75 AD3d at 7).

Concur— Mazzarelli, J.E, Moskowitz, DeGrasse, Feinman and Clark, JJ.

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Bluebook (online)

105 A.D.3d 420, 961 N.Y.S.2d 471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/echostar-satellite-llc-v-espn-inc-nyappdiv-2013.

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