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A New York Appellate Division, 1st Department, panel has thrown out a $4.8 million verdict, holding that the trial judge improperly entered a verdict based on an “unannounced, unaffirmed and rejected” verdict sheet. “It is now hornbook law that a jury verdict must be announced in open court, that the parties have an absolute right to have the jury polled, and that once so published in open court, the verdict must be entered by the court clerk in the official minutes of the proceedings,” Justice James M. Catterson wrote for the unanimous, five-judge panel in National Equipment Corp. v. Ruiz, 5100. “In this case, the only verdict which was duly announced, reported and recorded in open court was the one based on [a subsequent] questionnaire.” The panel nonetheless found the defendants liable, though it remanded the issues of assessment of damages and apportionment of liability. Justices Angela M. Mazzarelli, George D. Marlow, Betty Weinberg Ellerin and Luis A. Gonzalez were also on the panel. In the underlying suit, Cirro Rodriguez sought damages for the loss of three fingers and a thumb while using a dough mixer. He asserted a products liability claim against the mixer’s manufacturer, National Equipment Corp., and a negligence claim against his employer, Ferrara Foods & Confections Inc. Manhattan Supreme Court Justice Norma Ruiz instructed the jurors to decide the case on the basis of 12 questions on a verdict sheet. Initially, the jury failed to follow the sheet’s instructions. Although directed to end its deliberations if it answered “yes” to question eight (“Was the substantial alteration made by [Ferrara Foods] a substantial factor in causing plaintiff’s injury?”), the jury continued to answer through question 12. The jury exceeded its charge, by both assessing damages ($4.8 million) and apportioning liability (75 percent for the employer, 25 percent for the manufacturer). Those findings appeared to conflict with a “yes” answer to question eight, which defense attorneys argued precluded liability on the part of the manufacturer. After the jury returned its verdict, Ruiz declined to show it to the attorneys. “It is uncontroverted that the attorneys were not shown the jury’s responses to the questions on the first verdict sheet,” Catterson wrote. “It is also uncontroverted that [the] verdict sheet was never announced or published in open court, nor was it affirmed in open court by the jury. The parties were also not afforded the right to poll the jury about its answers.” Ruiz provided the jurors with a second verdict sheet, identical to the first. This time, the jurors stopped after answering “yes” to question eight. The second sheet was reported and recorded, but because of an error in the instructions, Ruiz ruled that the jury had found for the defendants. In interviews Monday, attorneys disagreed about what the error entailed, and the appellate decision did not specify. One week later, Ruiz called the attorneys back for a conference. She advised the parties that she intended to enter judgment for the plaintiff on the basis of the first verdict sheet. “The Court inadvertently had the jurors come back with a different verdict because the Court was incorrect when it assumed that the jurors misunderstood an instruction on the verdict sheet,” she explained. National Equipment filed a petition seeking a writ of prohibition against Ruiz, barring her from entering the first verdict, and a writ of mandamus, compelling her to enter the second one. Ferrara Foods filed a nearly identical petition. MIXED RESULTS The appellate panel granted both writs, but with mixed results for the petitioners. “It is well settled that prohibition is an extraordinary remedy that lies where there is a clear legal right to the relief requested, and where one seeks either to prevent a court from proceeding or threatening to proceed without jurisdiction, or to restrain a court from exceeding its authorized powers in a proceeding over which it has jurisdiction,” Catterson wrote. “The case at bar presents one of those rare and unique instances which cries out for just such an extraordinary remedy,” he added. The panel found that Ruiz exceeded her authority by entering judgment based on a verdict sheet “one week after the jury was discharged, thus substituting a legal nullity in place of the jury’s duly reported and recorded verdict.” The panel also granted the writ of mandamus, ordering the second verdict to be entered. “It is well settled that mandamus lies to compel the performance of a purely ministerial act where there is a clear legal right to the sought relief,” Catterson held. “In this case, the act of entering judgment on the jury’s published verdict is clearly a ministerial task.” However, the panel ruled that the jury’s second verdict sheet, taken as a whole, led to a finding of liability on the part of both defendants. When answers by a jury to specific questions “are consistent with each other but one or more is inconsistent with the general verdict, the court shall direct the entry of judgment in accordance with the answers,” Catterson said. Here, all of the “answers lead inexorably to the conclusion that the jury found both defendants responsible for the happening of the accident and the injuries that resulted therefrom.” Monday, attorneys from all sides expressed a mix of relief and disappointment. “I do have mixed feelings about it, but it is a mixed victory,” said Ferrara Foods’ attorney, Francine Scotto of Newman Fitch Altheim Myers. John E. Durst Jr. of The Durst Law Firm represented Rodriguez. Mark A. Solomon and Rose M. Cotter of White Plains, N.Y.-based Eustace & Marquez represented National Equipment. Katherine E. Timon of the Attorney General’s office represented Ruiz.

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