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A divided New York appellate panel has reluctantly upheld a rare reversal of a civil verdict for jury misconduct, saying the trial court’s judgment should be honored despite its failure to investigate the matter. Ruling 2-1, the Appellate Term, First Department, Tuesday said plaintiff Wing Shung Lam should receive another chance to bring his defamation suit against the owners of Jing Fong Restaurant, Chinatown’s largest eatery. Two years ago, a split jury said Lam deserved no compensation despite having been defamed, but a trial judge vacated that verdict after finding that four jurors harassed two others with racial slurs. In a dissenting opinion, one Appellate Term judge said the ruling went against long-standing public policy on impeaching jury verdicts. Lam, the executive director of the Chinese Staff & Workers’ Association, organized protests against Jing Fong in the 1990s, claiming the restaurant took tips from its waiters, did not pay overtime and provided no benefits. Supporters of the restaurant held counter-protests at which, Lam alleges, the owners of Jing Fong put up posters calling him “slaveholder” and “big Satan.” In a television interview and at a fund-raiser, the owners allegedly referred to Lam as “public enemy number one in this community.” Lam sued for defamation, and the trial lasted more than a month before a jury decided, 5-1, that numerous defamatory statements were made against Lam, but that the owners were not liable. Civil Court Judge Lucy A. Billings, who presided over the trial, later vacated that verdict after receiving affidavits from the dissenting juror, Milton Garrison, and another juror, Demetrius Daniel, who complained of verbal abuse and racial slurs by the other four jurors. Garrison, the jury foreman, was allegedly cursed at and referred to as “the white man” by the other four jurors, all either black or Latina women. He was accused of having a homosexual encounter in the courthouse bathroom with Lam’s attorney, Daniel L. Alterman, which did not happen. Daniel said Garrison was repeatedly berated despite Judge Billings’ warnings to the jury. Daniels said that he, too, suffered verbal attacks, such as being called an “Uncle Tom” when he agreed with Garrison. He said he eventually gave in to the “hostility” and “personal attacks” and voted along with the four women. Judge Billings vacated the verdict with “great reluctance,” saying it was tainted by racial animus and irrational, considering the jury’s contradictory findings on defamation and the clear damage the remarks did to Lam and his non-profit corporation. In a written ruling, the judge for the first time revealed that she had been made aware of racial animus before the jury began deliberating. In upholding the judge’s ruling, the majority of the Appellate Term said it was “constrained to agree that the interests of justice require that the matter be tried anew.” The majority cautioned, however, that its ability to review the case had been “hindered” by Judge Billings’ failure to hold a pre-verdict investigation into the alleged juror misconduct. “It is also the case, however, that this same infirmity in the existing record precludes us from safely or fairly minimizing the role that invidious racial bias may well have played in the jury’s deliberative process,” the majority wrote. DISSENTING OPINION In a dissenting opinion, Justice William P. McCooe described the jurors’ remarks as uncivil, unacceptable “trash talk,” but said the remarks did not establish a racial bias or affect the verdict. He noted that all the litigants were Asian, and that any animus from black or Latina jurors did not change the vote of the white foreman, Garrison. He also said the use of post-trial affidavits from jurors to impeach a verdict was “patently improper.” Justice McCooe noted that the only allegation of racial bias against Daniel — “Uncle Tom” — “was by an African-American woman, and its content fails to establish a racial bias affecting the result.” Justice McCooe faulted Lam’s attorney for not objecting to improper procedure, saying, “Parties cannot wait until after an unfavorable verdict and then object.” The majority rejected this reasoning, saying that Lam’s attorney could not object if the court had not made the parties aware of the racial animus. Alterman, of Alterman & Boop, said the majority ruling was “well reasoned and perfectly consistent.” “Judge Billings called it the way she saw it,” he said. “It was not only a compromise verdict, but there was open racial hostility.” Hugh M. Mo, who represented the owners of Jing Fong, said he would seek to appeal the ruling, which he described as important beyond this case. “The dissent hit it right on the nose: There is a long public policy in this country not to tamper with jury verdicts,” Mo said. Doing so, he said, “Opens the floodgate to a variety of mischief.” Justices Martin Schoenfeld and Phyllis B. Gangel-Jacob were in the majority.

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