MARINO v. COUNTY OF ERIE (1999)

Supreme Court properly granted plaintiff's motion to set aside the jury verdict of no cause of action and granted a new trial on the ground that the verdict was tainted by an outside influence.   At the hearing on the motion, the foreperson testified that he viewed the accident scene during the trial and compared his observations at the accident scene with the evidence presented by the parties.   The foreperson, who voted in favor of the verdict, communicated his observations to other members of the jury during deliberations.   In doing so, the foreperson “injected ‘significant extra-record facts' into the deliberation process and thereby became an unsworn witness to ‘nonrecord evidence’ (People v. Legister, 75 N.Y.2d 832, 833, 552 N.Y.S.2d 906, 552 N.E.2d 154;  Alford v. Sventek, 53 N.Y.2d 743, 745, 439 N.Y.S.2d 339, 421 N.E.2d 831;  People v. Brown, 48 N.Y.2d 388, 393, 423 N.Y.S.2d 461, 399 N.E.2d 51)” (Fitzgibbons v. New York State Univ. Constr. Fund, 177 A.D.2d 1033, 1034, 578 N.Y.S.2d 317).   Plaintiff sufficiently proved prejudice resulting from the foreperson's actions to warrant setting aside the verdict (see, Fitzgibbons v. New York State Univ. Constr. Fund, supra, at 1034, 578 N.Y.S.2d 317;  cf., Alford v. Sventek, supra, at 745, 439 N.Y.S.2d 339, 421 N.E.2d 831).

We reject the contention of defendant County of Erie that the court erred in denying its motion for judgment during trial (see, CPLR 4401).   Plaintiff presented sufficient proof to make out a prima facie case of negligence against that defendant (see, Pulitano v. Suffolk Manor Caterers, 245 A.D.2d 279, 280, 664 N.Y.S.2d 480;  see also, Scheemaker v. State of New York, 70 N.Y.2d 985, 986, 526 N.Y.S.2d 420, 521 N.E.2d 427).

Order unanimously affirmed with costs.

MEMORANDUM: