         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1483
CA 10-01300
PRESENT: SMITH, J.P., CENTRA, FAHEY, AND GREEN, JJ.


RANDALL K. BEST AND CORINNE BEST,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

SWAN GROUP LIMITED PARTNERSHIP, SWAN
GROUP LIMITED PARTNERSHIP, DOING BUSINESS
AS ELLICOTT PARKING, AND ELLICOTT
DEVELOPMENT COMPANY, LLC,
DEFENDANTS-APPELLANTS.


RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (JEFFREY F.
BAASE OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Frederick
J. Marshall, J.), entered January 6, 2010 in a personal injury action.
The order, among other things, set aside the jury’s verdict on the
issue of damages and ordered a new trial on that issue.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Supreme Court properly granted plaintiffs’ motion to
set aside the verdict on damages and for a new trial (see CPLR 4404
[a]). The record establishes that the court failed to instruct the
jury to disregard its apportionment of fault in calculating the amount
of damages (see PJI 2:36.2). That error was so fundamental as to
preclude a proper consideration of the issue of damages (see Hoffman v
Domenico Bus Serv., 183 AD2d 807; see generally Kelly v Tarnowski, 213
AD2d 1054). Consequently, the court properly determined that a new
trial limited to the issue of damages is appropriate (see Flanagan v
Southside Hosp., 251 AD2d 447, 448-449; Hoffman, 183 AD2d 807;
McStocker v Kolment, 160 AD2d 980, 981). Finally, we note that
defendants are correct in contending that “the use of [juror]
affidavits for the purpose of exploring the deliberative processes of
the jury and impeaching its verdict is patently improper” (Hoffman,
183 AD2d at 808; see Phelinger v Krawczyk, 37 AD3d 1153; see generally
Kaufman v Eli Lilly & Co., 65 NY2d 449, 460), and we therefore have
not considered the juror affidavits contained in the record in
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                                              CA 10-01300

reaching our determination.




Entered:   February 10, 2011         Patricia L. Morgan
                                     Clerk of the Court
