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February 4, 2015

Impermissible Jury Compromise Results in New Trial

In Nakasato v. 331 W. 51st Corp., 2015 NY Slip Op 00619 (1st Dep't January 26, 2015), the Appellate Division, First Department, affirmed the decision of the trial court which granted the plaintiff's motion to set aside the verdict and ordered a new trial, and denied the defendants' motion for a directed verdict and cross-motion for judgment notwithstanding the verdict.

The plaintiff, Akira Nakasato, was severely injured in a restaurant when he fell down a staircase. The restaurant was operated by defendant 331 W. 51st Corp and was located in a building owned by co-defendant Eleban Yau-Mei Wong. Nakasato suffered extensive brain and spinal injuries as a result of the accident. After Nakasato rested at trial, both defendants moved for a directed verdict, or a ruling by the trial judge which takes the case away from the jury because the evidence permits only one reasonable verdict. The court reserved its decision.

The trial concluded and in the course of deliberations, the jury sent two notes to the court, one of which stated that it was deadlocked as to whether 331 W. 51st Corp was negligent. The jury resumed deliberations following additional instructions from the court and returned with its verdict that 331 W. 51st Corp was negligent and its negligence was a substantial factor in causing the accident. The jury also found that co-defendant Wong was not negligent. The jury further determined that Nakasato was negligent and that his conduct was a proximate cause of the accident. Liability was apportioned 75% as to Nakasato and 25% as to 331 W. 51st Corp. Nakasato was awarded $88,797.27 for past medical expenses, as stipulated by the parties before trial, and no other damages were awarded for past or future economic or non-economic loss.

Nakasato moved to set aside the verdict pursuant to CPLR 4404(a) and argued that the verdict was the product of an impermissible jury compromise. The defendants opposed the motion and cross-moved for judgment notwithstanding the verdict, which is a judgment entered for one party even though a jury verdict has been rendered for the opposing party. The court granted Nakasato's motion to set aside the jury verdict as a compromise and ordered a new trial as to all issues and all parties. The court also denied defendants' motion for a directed verdict and denied 331 W. 51st Corp's motion for judgment notwithstanding the verdict.

On appeal, the court found that the trial court properly denied defendants' motions and that the evidence adduced at trial was sufficient to support a finding that 331 W. 51st Corp's negligence proximately caused Nakasato's injuries. Notwithstanding, the court determined that the trial court correctly set aside the verdict and ordered a new trial. The court noted that the jury's failure to award damages beyond reimbursement of medical expenses, despite the severity and permanency of Nakasato's injuries, supported the trial court's conclusion that the jury rendered an impermissible compromise verdict. The court noted that the extent of Nakasato's injuries could not be reconciled with the absence of a damages award and that the verdict reached by the jury was likely the result of concessions by jurors in order to avoid a deadlock.

This case illustrates the impact that an impermissible compromise can have on the outcome of a jury verdict. It should also serve as a reminder that if a situation arises in which a verdict may be the result of an impermissible jury compromise, it is imperative to move for the requested relief pursuant to CPLR 4404 in a timely manner as CPLR 4405 mandates that post-trial motions be made within 15 days of the verdict.

If you require further information regarding the content of this Legal Alert, please contact Thomas B. Cronmiller, Chair of the Torts & Products Liability Defense Practice Area, at (585) 295-4424 or


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