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The New York Appellate Division, 1st Department, has vacated a $4.3 million jury award in favor of a woman who claimed that, by not enforcing no-smoking laws, Elite Model Management failed to provide her with a reasonable accommodation for her asthma-related disability. The panel ruled that Manhattan Supreme Court Justice Louis York’s substitution of two alternate jurors after deliberations had begun and without the defendants’ consent violated the defendants’ right to a jury of six persons who deliberate on all matters. “[T]he two alternates here had not participated in the beginning of the deliberations and therefore were not on equal footing with the original four jurors. � In the worst case scenario, deliberations may have progressed to a stage where those four [original] jurors had reached substantial agreement, presenting a ‘formidable obstacle’ to any attempt by the two alternates to sway others to their view,” Justice Luiz A. Gonzalez wrote for the unanimous panel in Gallegos v. Elite Model Management Corp., 7013. Justices Angela M. Mazzarelli, David B. Saxe, Betty Weinberg Ellerin and James M. Catterson joined the opinion. Plaintiff Victoria Gallegos, who was fired from Elite after six weeks as a sales director with a six-figure salary, claimed the agency retaliated against her after she complained that her co-workers persistently smoked cigarettes in the office. The smoke, Gallegos said, aggravated her asthma and caused her to cough up blood. After a jury found Elite liable and as it deliberated damages, co-defendant Mary Ann D’Angelico, Elite’s director of finance, allegedly ran into one of the jurors in the women’s restroom and spoke with her about the case. D’Angelico allegedly made disparaging remarks about Gallegos, including that she had been fired from a job at Barney’s for bringing a lawsuit against it. The juror later told another juror about the encounter. That juror — an attorney — immediately informed Justice York. York replaced the two jurors with alternates and allowed deliberations to continue. The modified jury then returned a verdict of $5.2 million, $600,000 more than Gallegos had originally sought. York subsequently reduced the award to $4.3 million. On Thursday, the 1st Department affirmed the liability judgment, but vacated the damages award, remanding the matter for a new trial. The court based its decision on the 1966 Court of Appeals’ decision People v. Ryan, 19 NY2d 100, which involved the substitution of an alternate juror for an ill juror five hours into deliberations in a robbery-and-assault case. “ Ryan stands for the proposition that absent consent, the substitution of an alternate juror after deliberations have commenced violates the parties’ State constitutional right to a jury trial and any resulting verdict is therefore invalid,” Gonzalez wrote. “Although Ryan was a criminal case, its rationale is equally applicable to civil actions because the right to a jury trial is guaranteed by the State constitution in both civil (6 jurors) and criminal (12 jurors) cases.” The decision marks the second victory this year in this matter for D’Angelico. In January, a Criminal Court judge dismissed jury tampering charges — stemming from the restroom incident — against her. (NYLJ, Jan. 12, 2005.) Robert L. Herbst and Spencer Freedman of Beldock, Levine & Hoffman represented Gallegos. They could not be reached for comment. Joshua Rievman and Sarah K. Barickman of Hoguet Newman & Regal represented D’Angelico and co-defendant Gerald Marie. Mr. Rievman did not return a call for comment. Peter J. Gallagher and Paul C. Gunther of Salans represented co-defendant Monique Pillard.

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