         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
697
CA 10-02146
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, GORSKI, AND MARTOCHE, JJ.


TINA M. HOLSTEIN, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

COMMUNITY GENERAL HOSPITAL OF GREATER SYRACUSE,
DEFENDANT-APPELLANT.


MEISELMAN, DENLEA, PACKMAN, CARTON & EBERZ P.C., WHITE PLAINS (MYRA I.
PACKMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.

DEFRANCISCO & FALGIATANO LAW FIRM, SYRACUSE (JEFF D. DEFRANCISCO OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(James P. Murphy, J.), entered June 24, 2010 in a medical malpractice
action. The judgment, entered upon a jury verdict, awarded plaintiff
the sum of $1,690,000 with interest.

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

     Memorandum: Plaintiff commenced this medical malpractice action
seeking damages for injuries she sustained based on the negligence of
defendant’s employee. We reject defendant’s contention that Supreme
Court erred in denying its motion to set aside the jury verdict and
for a new trial pursuant to CPLR 4404 (a). Contrary to defendant’s
contention, we conclude that the verdict is not against the weight of
the evidence, inasmuch as the evidence did not “ ‘so preponderate[] in
favor of the [defendant] that [the verdict] could not have been
reached on any fair interpretation of the evidence’ ” (Lifson v City
of Syracuse [appeal No. 2], 72 AD3d 1523, 1524; see Lolik v Big V
Supermarkets, 86 NY2d 744, 746). Indeed, the “trial was a
prototypical battle of the experts, and the jury’s acceptance of
[plaintiff’s] case was a rational and fair interpretation of the
evidence” (Lillis v D’Souza, 174 AD2d 976, 977, lv denied 78 NY2d 858;
see Winiarski v Harris [appeal No. 2], 78 AD3d 1556, 1557). We reject
defendant’s further contention that the jury’s award of compensatory
damages “deviate[d] materially from what would be reasonable
compensation” (CPLR 5501 [c]; see generally Schmitt v Werner Enters.,
277 AD2d 1003).

     We further conclude that defendant waived his contention that a
new trial is warranted based upon the failure of the court to poll the
jury. Following the jury’s announcement of the verdict, defense
                                 -2-                           697
                                                         CA 10-02146

counsel “ask[ed] that the jury be polled,” to which the court
responded, “Jury be polled, they have signed. They each have
individually signed.” Defense counsel then stated, “Okay. All right.
Thank you,” following which the court excused the jury. We cannot
conclude that the equivocal comment by the court constituted a ruling
on defense counsel’s request. This case is distinguishable from Duffy
v Vogel (12 NY3d 169, 172), where the request to poll the jury was
explicitly “denied as ‘unnecessary[,]’ and the jury [was] discharged.”
Rather, here, defense counsel was afforded an opportunity to clarify
her request prior to the jury being discharged “and[,] when [defense]
counsel immediately abandoned the subject[,] the court might well have
assumed that [defense] counsel acquiesced that the polling was
unnecessary” (Farhart v Matuljak, 283 App Div 977, 978). Inasmuch as
defense counsel failed to indicate “that [she] nevertheless . . .
wished [to have] the jury polled[] or [to] ask[ ] for a definite
ruling” (id.), we conclude that defense counsel failed to make her
“position sufficiently clear to the court to make the question
available upon appeal” (id.).

     All concur except SCUDDER, P.J., and MARTOCHE, J., who dissent and
vote to reverse in accordance with the following Memorandum: We
respectfully dissent inasmuch as we agree with defendant that a new
trial is warranted based upon the failure of Supreme Court to poll the
jury. There is no question that defense counsel unequivocally
requested that the jury be polled and, in our view, the court had an
absolute duty to rule on that request. In response to defense
counsel’s request, the court stated, “Jury be polled, they have
signed. They have each individually signed.” Defense counsel
thereafter responded, “Okay. All right. Thank you.” We conclude
that it was unnecessary for defense counsel to make a formal exception
to the ruling of the court (see CPLR 4017). Even if we were to agree
with the majority that the court’s response to the request of defense
counsel was equivocal, we cannot conclude that defendant waived his
contention based on the subsequent response of defense counsel. A
party has an absolute right to have the jury polled and that right
exists unless the party “ ‘has expressly agreed to waive that right’ ”
(Duffy v Vogel, 12 NY3d 169, 174). Any ambiguity in the court’s
response should not be held against defense counsel, and her statement
does not constitute a clear and express abandonment of her original
request. Thus, we view the exchange between defense counsel and the
court as ambiguous at best, and we resolve the ambiguity in favor of
defense counsel, who made a clear and direct request to have the jury
polled. We would therefore reverse the judgment, grant defendant’s
post-trial motion, set aside the verdict and grant a new trial.




Entered:   July 1, 2011                         Patricia L. Morgan
                                                Clerk of the Court
