MEHAR v. CITY OF NEW YORK (1999)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Taylor, J.), dated January 29, 1998, which, after a jury verdict finding the defendant City of New York 80% at fault, the defendants Lannie Gordon and Angela Esson 15% at fault, and the plaintiffs 5% at fault in the happening of the accident, granted the oral motion of the defendant City of New York for a mistrial setting aside the jury verdict as to liability in favor of the plaintiffs and against the defendants.

ORDERED that on the court's own motion, the appellants' notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701[c] );  and it is further,

ORDERED that the order is reversed, the motion of the defendant City of New York is denied, and the jury verdict as to liability is reinstated;  and it is further,

ORDERED that the appellants are awarded one bill of costs.

After a liability verdict against the defendant City of New York (hereinafter the City) had been rendered by the jury in a bifurcated trial, the parties and the court learned that one of the jurors was not a resident of Queens County and thus was not qualified to serve on the jury (see, Judiciary Law § 510 [1] ).   The court then granted the City's oral motion for a mistrial.

 Preliminarily, we note that as a general principle, rulings made during the course of a trial are not appealable.   Rather, these rulings, even if reduced to a written order, are brought up for review on an appeal from the ensuing judgment (see, e.g., Radford v. Sheridan Prods., 181 A.D.2d 667, 581 N.Y.S.2d 683;  Savarese v. New York City Hous. Auth., 172 A.D.2d 506, 567 N.Y.S.2d 855;  Brown v. Micheletti, 97 A.D.2d 529, 468 N.Y.S.2d 160;  Selly v. Port of N.Y. Auth., 36 A.D.2d 861, 321 N.Y.S.2d 683;  Constantin v. County of Dutchess, 34 A.D.2d 954, 312 N.Y.S.2d 430;  Kinner v. Kuroczka, 12 A.D.2d 383, 212 N.Y.S.2d 479;  Waters v. Collins, 5 A.D.2d 358, 171 N.Y.S.2d 1020).   Accordingly, the denial of a motion for a mistrial during the course of a trial is not appealable and review may be had on an appeal from the ensuing judgment (see generally, Hannon v. Dunkirk Motor Inn, 167 A.D.2d 834, 562 N.Y.S.2d 248;  see also, Reome v. Cortland Mem. Hosp., 152 A.D.2d 773, 774, 543 N.Y.S.2d 552;  10 Carmody-Wait 2d, N.Y. Prac § 70.30, at 48).

 In this case, the Supreme Court, in the order appealed from, granted an oral motion made by the defendant City of New York (hereinafter the City) for a mistrial based on an alleged violation of Judiciary Law § 510(1) after the jury reached a verdict on liability.   Under these circumstances, we deem it appropriate to treat the appellants' notice of appeal as an application for leave to appeal and grant the application for leave to appeal pursuant to CPLR 5701(c) (see, DePasquale v. Morbark Indus., 254 A.D.2d 450, 678 N.Y.S.2d 777).   Although it has been held that the granting of a motion for a mistrial is not appealable (see, e.g., Kyong Hi Wohn v. County of Suffolk, 211 A.D.2d 761, 621 N.Y.S.2d 392;  Slavin v. Berlin, 172 A.D.2d 514, 568 N.Y.S.2d 334;  Mecca v. Connelly, 150 A.D.2d 353, 543 N.Y.S.2d 317;  Fine v. Cummins, 260 A.D. 569, 24 N.Y.S.2d 605;  Matter of Taylor, 271 A.D. 947, 67 N.Y.S.2d 823), those cases are distinguishable from the case at bar since they involve the granting of a motion for a mistrial made during the trial and before a jury verdict was rendered (see, e.g., Kyong Hi Wohn v. County of Suffolk, supra).   The facts in Covell v. H.R.H. Constr. Corp., 24 A.D.2d 566, 262 N.Y.S.2d 370, affd. 17 N.Y.2d 709, 269 N.Y.S.2d 718, 216 N.E.2d 710, are also inapposite to the case at bar.

 Turning to the merits of the instant appeal, the court erred in granting the City's oral motion for a mistrial setting aside the jury verdict as to liability.   The City waived any objection to the juror's qualification for service when it failed to initially ascertain the juror's true residence and challenge the juror on that ground (see, People v. Cosmo, 205 N.Y. 91, 101, 98 N.E. 408).   Moreover, as the juror's residence did not affect his intelligence and fairness (see, People v. Cosmo, supra, at 100-101, 98 N.E. 408) or his competence to serve (see, People v. Foster, 64 N.Y.2d 1144, 1146, 490 N.Y.S.2d 726, 480 N.E.2d 340, cert. denied 474 U.S. 857, 106 S.Ct. 166, 88 L.Ed.2d 137), the juror's failure to meet the appropriate statutory requirement was not a sufficient reason to grant a mistrial (see, People v. Foster, 100 A.D.2d 200, 473 N.Y.S.2d 978, affd. as modified 64 N.Y.2d 1144, 490 N.Y.S.2d 726, 480 N.E.2d 340, cert. denied 474 U.S. 857, 106 S.Ct. 166, 88 L.Ed.2d 137;  see also, U.S. v. Rosenstein, 2d Cir., 34 F.2d 630, 634, cert. denied 280 U.S. 581, 50 S.Ct. 33, 74 L.Ed. 631, cert. denied sub nom. Levy v. U.S., 280 U.S. 602, 50 S.Ct. 85, 74 L.Ed. 647;  People ex rel. Ostwald v. Craver, 272 App.Div. 181, 183, 70 N.Y.S.2d 513).

MEMORANDUM OF THE COURT.