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Appellate Division, Second Department, Sets Aside Liability Verdict Due to Possible Juror Confusion


The plaintiff was a laborer who was injured while removing flooring during a demolition of property owned by Temple Beth Sholom. Conflicting versions of the accident were presented at trial. One version of the accident, presented by the defense, derived from the plaintiff's completion of a workers' compensation form that the plaintiff signed indicating that plaintiff "slipped and fell over debris." In the lawsuit, the plaintiff alleged that he was working at a height of four feet while removing the flooring when he slipped while standing on the floor beam. The jury found in favor of the defendants.

Plaintiff appealed the jury verdict and contended that the trial court had erred in rendering the jury instructions and requested that the jury verdict be set aside, and for judgment as a matter of law on the issue of liability.

Pursuant to CPLR 4404(a), a court "may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of the party entitled to judgment as a matter of law or it may order a new trial of a cause of action...where the verdict is contrary to the weight of the evidence [or] in the interest of justice."

The Appellate Division, Second Department, determined that the trial court not only erred in denying the plaintiff's request for a jury charge regarding whether the Temple violated Labor Law Section 240(1), but also erred in not instructing the jury to determine whether the plaintiff fell off the beam while working. This was an error given the conflicting accounts of the incident, and the jury was entitled to determine whether the plaintiff did not fall from the beam or, alternatively, that plaintiff did fall from the beam, but no safety device was required under Labor Law 240(1).

The Appellate Division, Second Department, noted that there was sufficient evidence of juror confusion since the jury asked for a read-back of Labor Law Section 240(1) and held that the errors in failing to charge the jury properly prejudiced a substantial right of the plaintiff and, therefore, a new trial was warranted; however, the court stopped short of granting the plaintiff judgment as a matter of law on liability since there was conflicting evidence as to whether the plaintiff fell from the beam or tripped over construction debris.

See Duran v. Temple Beth Shalom, Inc., et. al., 2015-04140/04141, Appellate Division, Second Department, November 8, 2017.


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