BEST v. SWAN GROUP LIMITED PARTNERSHIP LLC (2011)

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 A.D.2d 807; see generally Kelly v. Tarnowski, 213 A.D.2d 1054). Consequently, the court properly determined that a new trial limited to the issue of damages is appropriate (see Flanagan v. Southside Hosp., 251 A.D.2d 447, 448-449; Hoffman, 183 A.D.2d 807; McStocker v. Kolment, 160 A.D.2d 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 A.D.2d at 808; see Phelinger v. Krawczyk, 37 AD3d 1153; see generally Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 460), and we therefore have not considered the juror affidavits contained in the record in reaching our determination.

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

MEMORANDUM: