Kayser v. Sattar

Malone Jr., J.

(dissenting). We respectfully dissent. When given the opportunity to object to question 11 on the proposed verdict sheet before jury deliberations, plaintiffs did not. While it can be argued that the question could have been worded differently, such is always the case when the trial court and trial attorneys discuss the wording of jury verdict sheet questions before the court makes its determination on that wording. To allow a party to obtain a second opportunity to change the wording after an unfavorable verdict, except in the most obvious and egregious cases where the error is fundamental (see Pagnotta v Diamond, 51 AD3d 1099, 1100 [2008]), would subject the prevailing party and the trial court to the expense and time of a retrial. Furthermore, the CPLR explicitly provides that “[n]o party may assign as error the giving or the failure to give an instruction unless he [or she] objects thereto before the jury retires to consider its verdict stating the matter to which he [or she] objects and the grounds of his [or her] objection” (CPLR 4110-b; see Postlethwaite v United Health Servs. Hosps., 5 AD3d 892, 894 [2004]).

In any event, question 11, which did prompt a jury note, was sufficiently clear. Supreme Court’s response to the note, instructing the jury that it was to give plain meaning to the word “application” of traction, was not improper. Consequently, we would affirm the judgment in favor of defendants.