Jury Polling Request
January 6, 2021 Posted By Joseph A. French Insurance Coverage
Second Department Affirms 2016 defense Verdict.
In Rueda v. Elmhurst Woodside, LLC, et al., (2nd Dept. 2020) 187 A.D.3d 955, the Second Department recently affirmed judgment that had been entered in the defendants’ favor following a trial in 2016, Supreme Court, Queens County (Judge Ritholtz). Plaintiff had sought $7 million dollars in damages, because she claimed she was injured when a ceiling collapsed in her employer’s hair salon. Counsel unsuccessfully argued that the verdict should be overturned for the following reasons: the trial should not have been bifurcated, the Trial Judge should have issued an interested witness concerning her former non-party employer and several non-party former co-workers, and that the Judge refused to poll the jury, despite the fact that plaintiff’s counsel had never requested that the jury be polled.
These and “plaintiff’s remaining contentions either are without merit or do not warrant reversal”. Thus, the 2016 jury verdict stands.
A request to poll the jury, following the jury’s announcement of its verdict, must be timely made. A failure to make the request before the just exits the courtroom will typically prove fatal to an appeal of the verdict on this ground.
Several years ago, we successful represented several defendants in the matter of Rueda v. Elmhurst Woodside, LLC, et al; Supreme Court, Queens County, Justice Ritholtz.
Plaintiff claimed she was injured when the ceiling collapsed inside her employer’s hair salon. She sought millions in damages.
The liability trial proceeded, and at its conclusion, the jury returned a defense verdict in favor of all defendants.
Plaintiff’s counsel made several comments on the record, yet he never requested that the jury be polled. The Judge also never asked him whether the jury should be polled.
The jury left the courtroom without being polled.
On appeal, among other issues, counsel sought to overturn the jury verdict on the basis that the jury had not been polled.
While a party does have an absolute right to poll the jury and a Court’s denial of a request to poll the jury mandates reversal and a new trial, this right can be waived. The Second Department has held that a party waives its right to poll the jury if it fails to make the request prior to the jury leaving the courtroom. Giannattasio v. Han Suk Kang, 84 A.D.3d 728,729, 922 N.Y.S.2d 789 (2d Dept. 2011). Furthermore, it is well established that when a party fails to request that the jury be polled or neglects to object to improper polling in a timely manner, the issue is precluded from appellate review. People v. Marilla, 7 N.Y.2d 319, 321 (1960); People v. Mercado, 91 N.Y.2d 960, 963 (1998).
Here, appellant’s counsel did not make a request on the record that the jury be polled prior to the jury leaving the courtroom. Appellant had an opportunity to make the request, yet failed to do so. In effect, appellant waived her right to poll the jury. Furthermore, appellant failed to preserve this issue for appellate review because her attorney failed to make any objections to the polling issue at the time of trial.
Appellant’s counsel argued that there was simply no time for him to make the request for polling after the verdict was read into the record and before the jury was discharged from the courtroom. We disagreed.
The verdict sheet was shown to both counsel. Counsel, after having reviewed the verdict sheet himself, did not request that the jury be polled. In the absence of this request, the jury was then discharged. Again, despite ample time, counsel made no request that the jury be polled. The jury then exited the courtroom, and again, before or as they exited, counsel made no request to have the jury polled, nor did he make a request for more time, nor did he indicate that the Trial Court was refusing to abide by any such request. Although, he raised the established point that the jury was not unanimous, counsel said nothing about polling the jury. Counsel, while clearly not requesting that the jury be polled, then proceeded to move to set aside the verdict. Still, not a word about polling was mentioned. Until the Trial Court concluded the proceedings, not a word was mentioned regarding polling the jury.
Counsel certainly had an opportunity to make the request for jury polling on the record to preserve the issue for appeal, but failed to do so. Counsel further had an opportunity to object, but again failed to do so.
It is well established that when a party fails to request that the jury be polled, the issue is precluded from appellate review. People v. Marilla, 7 N.Y.2d 319, 321 (1960) (precluding appellate review of the Trial Court’s failure to poll the jury where, at the time of trial, appellant’s counsel “neither voiced an objection nor requested that the jury be polled or their names called”); Peat v. Fordham Hill Owners Corp., 110 A.D.3d 643 (1st Dept. 2013) (holding that “[a]lthough the Trial Court failed to properly poll the jury prior to its discharge, the error is unpreserved in light of the failure of owners’ counsel to timely object to the manner in which the Court did poll the jury”). Here, as in Marilla and Peat, appellant failed to object to the Court’s failure to poll the jury at the time of trial or in her motion to set aside the verdict. (R. 606-609). The issue was not raised until the instant appeal.
In Holstein v. Cmty. Gen. Hosp. of Greater Syracuse, the Court of Appeals held that is was not unreasonable for the Trial Court to conclude that counsel’s request that the jury be polled had been withdrawn or waived. Holstein v. Cmty. Gen. Hosp. of Greater Syracuse, 20 N.Y.3d 892 (2012). There, in response to counsel’s request for jury polling, the Trial Court responded “Jury be polled? They have signed. They each have individually signed”. In response. Counsel stated “Okay. All right. Thank you”. Given the nature of counsel’s response to the Court’s inquiry, the Court found that the Trial Judge did not err in failing to poll the jury. Here, appellant not only failed to make a request to poll the jury prior to the jury being discharged from the courtroom, but failed to make a clear request on the record or object on the record after the jury was discharged or while they exited the courtroom.
The plaintiff argued that the Supreme Court erred in failing to poll the jury. However, the plaintiff failed to “request” a jury poll or otherwise raise that issue before the jury exited the courtroom Duffy v. Vogel, 12 N.Y.3d 169, 174; see Holstein v. Cmty. Gen. Hosp. of Greater Syracuse, 20 N.Y.3d 892, 893; Giannattasio v. Han Suk Kang, 84 A.D.3d 728, 729; see also Peat v. Fordham Hill Owners Corp., 110 A.D.3d 643, 644.
Thus, failure to request that a jury be polled following an adverse verdict will be fatal to an appellate review on the issue. No Judge can refuse a request to have the jury polled; if such request is denied, appellate review is certain, and a new trial is almost as certain.
Joseph A. French