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Supreme Court, Appellate Division, Second Department, New York.

Russell PORTER, et al., appellants, v. Thomas H. MILHORAT, etc., et al., respondents.

Decided: February 21, 2006

ROBERT W. SCHMIDT, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, and WILLIAM F. MASTRO, JJ. Laurence M. Deutsch, P.C., New York, N.Y., for appellants. Aaronson, Rappaport, Feinstein & Deutsch, LLP, New York, N.Y. (Elliott J. Zucker of counsel), for respondents.

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Patterson, J.), dated February 26, 2004, as denied their motion pursuant to CPLR 4404 to set aside a jury verdict on the issue of damages on the ground of juror confusion and for a new trial of the issue of damages, or in the alternative, for an additur.

ORDERED that the order is reversed insofar as appealed from, on the law and the facts, the motion is granted, and a new trial is granted on the issue of damages only.

 Jurors may not impeach their own verdict (see Moisakis v. Allied Bldg. Prods. Corp., 265 A.D.2d 457, 697 N.Y.S.2d 100;  Bedell v. Hornick, 245 A.D.2d 538, 666 N.Y.S.2d 498).   This principle, however, is subject to two well-known exceptions.   First, where an error is made in reporting the verdict, the trial judge may, upon the unanimous affidavits or statements of the jurors, correct the judgment to conform to the actual verdict (see Moisakis v. Allied Bldg. Prods. Corp., supra;  Bedell v. Hornick, supra;  Rose v. Thau, 45 A.D.2d 182, 357 N.Y.S.2d 201).   Second, where the record demonstrates substantial confusion among the jurors in reaching a verdict, the court must direct a new trial to prevent a miscarriage of justice to the litigants (see Moisakis v. Allied Bldg. Prods. Corp., supra;  Bedell v. Hornick, supra;  Pache v. Boehm, 60 A.D.2d 867, 401 N.Y.S.2d 260).

In the present case, the jury initially returned a verdict finding that the defendant Thomas Milhorat was negligent in his performance of surgery on the plaintiff Russell Porter and that as a result of such negligence, Russell Porter sustained a shoulder injury.   The jury awarded no past damages but $720,000 for future damages, in contradiction to the instructions on the verdict sheet requiring it to stop filling out the verdict sheet if it did not award past damages.   The trial court directed the jury to complete the sheet again, and this time it awarded no past damages and stopped.   As the jury was being discharged, the foreman questioned the trial court regarding the rest of the pages of the verdict sheet, which had been left blank.   The plaintiffs moved to set aside the verdict on the ground, inter alia, of juror confusion, submitting affidavits of several jurors who indicated that the jury intended to award the plaintiff Russell Porter $720,000 for past and future damages.

 There was substantial confusion among the jurors in reaching their verdict on the issue of damages.   The juror affidavits which should have been considered by the trial court in deciding the plaintiffs' post-trial motion further support a finding of juror confusion.   Accordingly, the plaintiffs are entitled to a new trial on the issue of damages only.

The plaintiffs' remaining contentions are either not properly before this court, have been rendered academic in light of our determination, or are without merit.

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