Neizner v. Paron Fabrics

90 A.D.2d 711, 455 N.Y.S.2d 637, 1982 N.Y. App. Div. LEXIS 18884

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 1982
• Status: Published

Opinion

Judgment of the Supreme Court, New York County (Nadel, J.), entered June 19, 1981, in favor of plaintiff Charlotte Neizner in the sum of $8,550 and in favor of plaintiff George Neizner in the sum of $1,750, plus interest, costs and disbursements, is reversed, on the law, the facts and in the exercise of discretion, with costs and disbursements to abide the event, and the matter remanded for a new trial. Following trial, the jury returned with a verdict in favor of plaintiffs. The forelady, when announcing the verdict, stated in part: “We also award Mrs. Neizner 25 percent of what she is suing for which comes to a total of $37,500. We agree that the store was 25 percent negligent and Mrs. Neizner was 75 percent negligent.” (Emphasis added.) The court, endeavoring to ascertain the intent of the jury, inquired as to the basis for its determination. Dissatisfied with the jury’s response, the court delivered additional instructions and sent the jury back for further deliberations. This process was repeated after the court found itself unable to accept the jury’s second verdict. An examination of the colloquies between the trial court and the forelady raises substantial doubts as to whether the jury understood and applied the Judge’s instructions in arriving at the first verdict, and also as to whether the jury understood and applied the Trial Judge’s instructions in arriving at its ultimate verdict. Accordingly, a new trial is required. Concur — Sandler, J. P., Sullivan, Markewich and Milonas, JJ.