BEST, RANDALL K. v. SWAN GROUP LIMITED PARTNERSHIP

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 1483 CA 10-01300 PRESENT: SMITH, J.P., CENTRA, FAHEY, AND GREEN, JJ.

RANDALL K. BEST AND CORINNE BEST, PLAINTIFFS-RESPONDENTS, V MEMORANDUM AND ORDER SWAN GROUP LIMITED PARTNERSHIP, SWAN GROUP LIMITED PARTNERSHIP, DOING BUSINESS AS ELLICOTT PARKING, AND ELLICOTT DEVELOPMENT COMPANY, LLC, DEFENDANTS-APPELLANTS.

RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (JEFFREY F.

BAASE OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.

Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered January 6, 2010 in a personal injury action.

The order, among other things, set aside the jury’s verdict on the issue of damages and ordered a new trial on that issue.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Supreme Court properly granted plaintiffs’ motion to set aside the verdict on damages and for a new trial (see CPLR 4404 [a]). The record establishes that the court failed to instruct the jury to disregard its apportionment of fault in calculating the amount of damages (see PJI 2:36.2). That error was so fundamental as to preclude a proper consideration of the issue of damages (see Hoffman v Domenico Bus Serv., 183 AD2d 807; see generally Kelly v Tarnowski, 213 AD2d 1054). Consequently, the court properly determined that a new trial limited to the issue of damages is appropriate (see Flanagan v Southside Hosp., 251 AD2d 447, 448-449; Hoffman, 183 AD2d 807; McStocker v Kolment, 160 AD2d 980, 981). Finally, we note that defendants are correct in contending that “the use of [juror] affidavits for the purpose of exploring the deliberative processes of the jury and impeaching its verdict is patently improper” (Hoffman, 183 AD2d at 808; see Phelinger v Krawczyk, 37 AD3d 1153; see generally Kaufman v Eli Lilly & Co., 65 NY2d 449, 460), and we therefore have not considered the juror affidavits contained in the record in -2- 1483 CA 10-01300 reaching our determination.

Entered: February 10, 2011 Patricia L. Morgan Clerk of the Court