                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 9, 2015                     519292
________________________________

JOHN THOMAS PIACENTE,
                    Respondent,
      v

MICHAEL P. BERNSTEIN et al.,                MEMORANDUM AND ORDER
                    Defendants,
      and

ERIC S. ROCCARIO et al.,
                    Appellants.
________________________________


Calendar Date:   February 11, 2015

Before:   McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

                             __________


      Thuillez, Ford, Gold, Butler & Monroe, LLP, Albany (Andrew
L. McNamara of counsel), for Eric S. Roccario and another,
appellants.

      Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Robert
A. Rausch of counsel), for Kathleen Ozsvath and another,
appellants.

      Silberstein, Awad & Miklos, PC, Garden City (Joseph P. Awad
of counsel), for respondent.


                             __________


Devine, J.

      Appeal from an order of the Supreme Court (Teresi, J.),
entered November 14, 2013 in Albany County, which granted
plaintiff's motion to set aside a verdict in favor of defendants.
                                -2-                519292

      Plaintiff commenced this medical malpractice action
against, among others, defendants Eric S. Roccario and Prime Care
Physicians, PLLC (hereinafter collectively referred to as the
Roccario defendants) and defendants Kathleen Ozsvath and The
Vasular Group, PLLC (hereinafter collectively referred to as the
Ozsvath defendants) and the action proceeded to trial in August
2013.1 Just prior to the close of proof, plaintiff requested
that Supreme Court, pursuant to CPLR 4105 and 4106, empanel the
first six jurors that had been selected and designate the
remaining two jurors as alternate jurors.2 Concluding that a
local rule enacted in the Third Judicial District regarding jury
selection procedures required that the six deliberating jurors be
chosen randomly by the court clerk, the court denied plaintiff's
request. The jury, which was comprised of juror Nos. 1, 2, 3, 4,
5 and 8, ultimately rendered a verdict of no cause of action.
Plaintiff then moved, pursuant to CPLR 4404 (a), to set aside the
verdict in the interest of justice, asserting, among other
things, that the violation of his statutory right to designate
the first six jurors selected during voir dire denied him a fair
trial. Supreme Court granted the motion and set aside the
verdict. The Roccario defendants and the Ozsvath defendants now
appeal.

        Initially, we find no evidence in the record indicating


    1
        Summary judgment was granted to defendants Michael P.
Bernstein and Capital Region Cardiology Associates, P.C., and the
action was voluntarily discontinued as to defendants Mikhail
Kirnus, John Taggert and St. Peter's Hospital.
    2
        CPLR 4105 states that "[t]he first six persons who appear
as their names are drawn and called, and are approved as
indifferent between the parties, and not discharged or excused,
must be sworn and constitute the jury to try the issue." CPLR
4106 provides, among other things, that alternate jurors may be
"drawn upon the request of a party and consent of the court" and
will be selected, seated, sworn and "treated in the same manner
as the regular jurors." This section further provides that, at
the close of proof, "the court may, in its discretion, retain
such alternate juror or jurors to ensure availability if needed."
                              -3-                519292

that plaintiff waived any objection to Supreme Court's reliance
on the Third Judicial District jury selection rule.3 "Waiver is
an intentional relinquishment of a known right and should not be
lightly presumed" (Gilbert Frank Corp. v Federal Ins. Co., 70
NY2d 966, 968 [1988] [citation omitted]; see Nassau Trust Co. v
Montrose Concrete Prods. Corp., 56 NY2d 175, 184 [1982]).

      Toward the close of proof, plaintiff notified Supreme Court
that, during voir dire, the parties had operated under the
understanding that the first six jurors to be selected would
ultimately serve and that the seventh and eighth jurors would
become the alternate jurors. Counsel for the Roccario defendants
agreed, stating that plaintiff had explicitly stated prior to
jury selection that "he wanted [jurors 7] and [8] to be
designated [alternates]" and that the parties had selected jurors
accordingly. Counsel for the Ozsvath defendants differed,
however, indicating that, although the parties had a conversation
about designating jurors, no express agreement to that effect had
ever been reached or otherwise communicated to the court.
Thereafter, the attorney for the Roccario defendants opined that,
because plaintiff had failed to notify the court that he wanted
to designate the jurors before the trial commenced, she presumed
that he had "abandoned" his request. Plaintiff insisted that,
although he had intended to apprise the court at an earlier point
in the trial that he sought to designate alternate jurors, the
demands of the trial had occupied his attention and, further,
that he was unaware that his reliance on the alternate juror
designation statute was objectionable. Thereafter, plaintiff
renewed his objection to the juror selection procedure before the
court directed the clerk to randomly draw the six jurors. On
this basis, we cannot agree that plaintiff waived or otherwise
failed to preserve his objection to the denial of his right to


    3
         The local rule provides that "[a]ll prospective jurors
(six plus the agreed upon number of alternates) will be selected
at random from the panel and seated in the jury box. Unless
there is consent of all parties and the presiding judge to
designate alternates, the jurors selected will not be designated"
(Civil Procedural Rules of the Third Judicial Dist., available at
http://www.nycourts.gov/courts/3jd/index.shtml).
                              -4-                  519292

invoke the statutory juror designation provision at issue here.

      After having determined that its application of the Third
Judicial District rule contravened plaintiff's substantial right
to empanel the first six jurors that had been selected by the
parties, pursuant to the "mandatory procedure" set forth in CPLR
4105, Supreme Court exercised its discretion and granted
plaintiff's motion to set aside the verdict and order a new trial
in the interest of justice. In the absence of evidence that the
court abused such discretion, we will not disturb Supreme Court's
determination in that regard (see CPLR 4404 [a]; Straub v
Yalamanchili, 58 AD3d 1050, 1052 [2009]; Sorel v Iacobucci, 221
AD2d 852, 854 [1995]).

     McCarthy, J.P., Egan Jr. and Clark, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
