In Martinez v Te 2010 NY Slip Op 03391 ;Decided on April 27, 2010 ;Appellate Division, First Department Catterson, J.  Justice Catterson of the First Department discusses a trial gone wrong in Bronx County, and overrules Judge Wright’s post trial decision.
 

In this  medical malpractice case, the jury sent notes, and then decided against plaintiff.  We’ll let Judge Catterson take it from here: "At 3:15 P.M., the jury returned a verdict for Dr. Te. During polling, one juror, regarding the second interrogatory (whether Dr. Te departed from accepted standards of care by performing the WIT on plaintiff in view of the size of his middle lobe), responded "yes, because we don’t have the actual – well, I say yes and why, because I say no, because we don’t have the standard procedures to go for." The court responded "there was a question from the jury asking for anything, any documents setting forth the standard. There were none." The juror responded "[t]here weren’t, so." Again, plaintiff sought no clarification of the juror’s statements nor made any objections prior to the jury being discharged.

Several months later, the plaintiff moved to set aside the verdict. The plaintiff argued that the proof of liability was "overwhelming," in contrast to Dr. Te’s "weak defense." The plaintiff argued that Dr. Te conceded that it was a reasonable conclusion that the "impassable" stricture in the urethra was caused by the hot water therapy. The plaintiff concluded that this concession weakened the defense, especially in view of Dr. Kaminetsky’s evidence that the stricture was in the bulbar urethra and Dr. Cohen’s testimony that the stricture was caused by the misplacement of the catheter during the WIT procedure. Hence, the plaintiff argued that the verdict was inconsistent with the weight of the evidence. "

One thing we’ve remebered for many years is that an inconsistent verdict must be preserved by asking for corrective action before the jury is disbanded.  Here, the Court holds, "Initially, we note that the bulk of the plaintiff’s arguments are unpreserved. The absence of any objection or request for clarification with regard to the court’s response to the jury note, or to the verdict (Rodriguez v. Budget Rent-A-Car Sys., Inc., 44 AD3d 216, 220, 841 N.Y.S.2d 486, 490 (1st Dept. 2007); Maione v. Pindyck, 32 AD3d 827, 829, 821 N.Y.S.2d 110, 112-113 (2d Dept. 2006)), on the basis that the jury was "confused," prior to the jury being discharged, has deprived this Court of an adequate record to review the claim. If the verdict had been questioned at that time, the matter could have been promptly resolved. Hence, the court, in setting aside the verdict on the basis asserted, necessarily deprived Dr. Te of an opportunity to address the claim when it could have been resolved prior to the jury being discharged.

Accordingly the order of the Supreme Court, New York County (Geoffrey D. Wright, J.), entered on or about August 5, 2009, which granted plaintiff’s motion to set aside the verdict, should be reversed, on the law, the motion denied and the verdict reinstated."