        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

701
CA 15-00775
PRESENT: CENTRA, J.P., LINDLEY, CURRAN, TROUTMAN, AND SCUDDER, JJ.


DENISE AMBROSE AND DAVID AMBROSE, INDIVIDUALLY
AND AS PARENTS AND NATURAL GUARDIANS OF
MADELEINE AMBROSE, AN INFANT,
PLAINTIFFS-RESPONDENTS,


                    V                             MEMORANDUM AND ORDER

JAMES E. BROWN, JR., M.D., ET AL., DEFENDANTS,
SUCHITRA KAVETY, M.D., INDIVIDUALLY AND AS AN
OFFICER, AGENT AND/OR EMPLOYEE OF ASSOCIATES
FOR WOMEN’S MEDICINE, JANE FIELDS, C.N.M.,
INDIVIDUALLY AND AS AN OFFICER, AGENT AND/OR
EMPLOYEE OF ASSOCIATES FOR WOMEN’S MEDICINE,
AND ASSOCIATES FOR WOMEN’S MEDICINE, BY AND
THROUGH ITS OFFICERS, AGENTS AND/OR EMPLOYEES,
DEFENDANTS-APPELLANTS.


FAGER AMSLER & KELLER, LLP, LATHAM (NANCY E. MAY-SKINNER OF COUNSEL),
FOR DEFENDANTS-APPELLANTS.

BOTTAR LEONE, PLLC, SYRACUSE (MICHAEL A. BOTTAR OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Onondaga County
(Walter W. Hafner, Jr., A.J.), entered March 12, 2015. The order
denied the posttrial motion of defendants Suchitra Kavety, M.D., Jane
Fields, C.N.M., and Associates for Women’s Medicine to reverse the
court’s prior decision granting a mistrial and to reinstate the
verdict in favor of defendants.

     It is hereby ORDERED that said appeal from the order insofar as
it denied leave to reargue is unanimously dismissed (see Empire Ins.
Co. v Food City, 167 AD2d 983, 984), and the order is reversed on the
law without costs, defendants-appellants’ motion is granted, and the
verdict is reinstated.

     Memorandum: Plaintiffs, individually and on behalf of their
daughter, commenced this medical malpractice action seeking damages
for injuries allegedly sustained by the child during labor and
delivery. The jury rendered a verdict in favor of Suchitra Kavety,
M.D., Jane Fields, C.N.M., and Associates for Women’s Medicine
(defendants), and Supreme Court granted plaintiffs’ motion for a
mistrial based on substantial juror confusion. Invoking, inter alia,
                                 -2-                           701
                                                         CA 15-00775

CPLR 2221 and 4404 (a), defendants made a posttrial motion seeking
leave to reargue and/or an order reversing the court’s decision,
reinstating the verdict, and directing that judgment be entered in
their favor. The court denied the motion.

     We agree with defendants that the court erred in denying their
motion (see generally Thorp v Makuen, 73 AD2d 617, 618). On the
verdict sheet submitted to the jury, the first question asked if Dr.
Kavety was negligent, the second question asked if Dr. Kavety’s
negligence was a substantial factor in causing harm to the child, the
third question asked if Fields was negligent, and the fourth question
asked if Fields’s negligence was a substantial factor in causing harm
to the child. The verdict sheet instructed the jurors that, if their
answer to the first question was no, to proceed to question three, and
if the answer to question three was no, to proceed to instruction 4.2,
which stated that they had rendered a verdict in favor of defendants
and must report it to the court. Despite those instructions, the jury
answered “no” to questions one through four, i.e., they found that Dr.
Kavety and Fields were not negligent and that their negligence was not
a substantial factor in causing harm to the child.

     We conclude that the court erred in granting a mistrial inasmuch
as the jury verdict was not the product of substantial confusion among
the jurors (see Martinez v Te, 75 AD3d 1, 6-7; Luzardo v Jamaica Hall
Corp., 296 AD2d 383, 384). The jurors did not need to answer
questions two and four regarding proximate cause because they found,
in response to questions one and three, that Dr. Kavety and Fields
were not negligent. The jurors’ answering of questions two and four
was merely a “ ‘superfluous act that does not require a new trial’ ”
(Alcantara v Knight, 123 AD3d 622, 623). Indeed, after the verdict,
the court questioned the jury foreman, who stated that the jury
mistakenly believed that an answer was required for all four questions
and that they discussed only the negligence questions. The record
establishes that the jury foreman understood that, once the jury
resolved to answer the negligence questions in the negative, the
proximate cause questions “automatically had to be ‘no.’ ”

     Plaintiffs nevertheless contend that the order should be affirmed
because a mistrial was appropriate on alternative grounds. We note,
however, that plaintiffs moved for a mistrial only on the ground of
substantial juror confusion and, thus, plaintiffs’ alternative grounds
for affirmance are not properly before us (see generally Parochial Bus
Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545-546; Reynolds
v Krebs, 81 AD3d 1269, 1271; Fleiss v South Buffalo Ry. Co., 280 AD2d
1004, 1005).




Entered:   September 30, 2016                   Frances E. Cafarell
                                                Clerk of the Court
