Sharrow v. Dick Corp. , 612 N.Y.S.2d 537 ( 1994 )

Judgment modified on the law and as modified affirmed without costs and new trial granted on damages for past and future pain and suffering only unless defendants, within 20 days of service of a copy of the order of this Court with notice of entry, stipulate to increase the verdict on damages for past and future pain and suffering to $150,000, in which event the judgment is modified accordingly and as modified affirmed without costs. Memorandum: We reject the contention that defendants were deprived of their constitutional right to a trial by a jury of six persons. All six persons were present throughout deliberations (cf, Waldman v Cohen, 125 AD2d 116). The findings in favor of plaintiff based on the 5 to 1 verdict are valid (see, CPLR 4113 [a]). There is no evidence that juror No. 5 refused to participate or was precluded from participating in deliberations. The statement, "[w]ell, she didn’t make a determination because she didn’t move on” is attributable to the court, not the juror. Juror No. 5 was not bound by the other jurors’ conclusion that defendants were liable to plaintiff (see, Schabe v Hampton Bays Union Free School Dist., 103 AD2d 418, 428). Because there is no evidence that juror No. 5 was precluded from participating in deliberations and the court weighed the importance of inquiry to determine if juror No. 5 participated in deliberations against the danger of being "too intrusive” and determined that the verdict spoke for itself without additional questioning, defendants were not deprived of their constitutional right to a trial by a jury of six persons.

Civil Rights Law § 14 sets forth a general prohibition against questioning jurors. "The policy reasons behind the rule [against impeaching a verdict] are to prevent 'the post-trial harassing of jurors for statements which might render their verdicts questionable’ and to avoid the chaos that a contrary rule would create (People v De Lucia, 20 NY2d 275, 278; see, McDonald v Pless, 238 US 264, 267-268; King v United States, 576 F2d 432, 438 [2d Cir])” (Kaufman v Eli Lilly & Co., 65 NY2d 449, 460). "In the absence of good cause, jurors should be protected against posttrial efforts to 'browse among their thoughts’ in an effort to invalidate their verdict” (Gamell v Mount Sinai Hosp., 40 AD2d 1010, 1011, lv dismissed 32 NY2d 678).

The argument of G & H Steel Service, Inc., and Southern Steel Corporation that plaintiff’s allegations of a Labor Law § 241 (6) violation were insufficient pursuant to Ross v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494, 501-505) is unpreserved for our review. Ross was decided almost three months after the trial ended, and the argument advanced on appeal was not raised at Supreme Court. We conclude that the motion to set aside the verdict as against the weight of the evidence did not preserve the issue whether plaintiff alleged sufficiently specific violations of the regulations. In the absence of preservation, we do not reach the issue whether Ross should be applied (see, People v Reynolds, 25 NY2d 489, 495; People v Baldi, 96 AD2d 212, 218-219; see also, People v Favor, 82 NY2d 254, 260-263).

Plaintiff argues that the damages awarded for past and future pain and suffering are inadequate. We agree. The testimony of plaintiff’s medical expert established that plaintiff had a herniated disk, causing total disability from work and pain that was at times excruciating. Plaintiff had back surgery in July 1989 but continues to experience back pain and may require further surgery. His medical expert testified that plaintiff will never be an iron worker again and that he may never be able to perform any kind of work. Plaintiff and his wife both testified concerning plaintiff’s unremitting pain. We conclude that the damages awarded for past and future pain and suffering deviate materially from what would be reasonable compensation (see, CPLR 5501 [c]).

A new trial on damages for past and future pain and suffering is granted unless defendants, within 20 days of service of a copy of the order of this Court with notice of entry, stipulate to increase the verdict to $100,000 for past pain and suffering and $50,000 for future pain and suffering. The judgment is otherwise affirmed.

All concur except Lawton and Boehm, JJ., who dissent and vote to reverse in the following Memorandum.