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Echostar Satellite L.L.C., Plaintiff-Appellant v. Espn

New York Supreme Court Appellate Division, First Department


April 2, 2013

ECHOSTAR SATELLITE L.L.C., PLAINTIFF-APPELLANT, --
v.
ESPN, INC., ET AL., DEFENDANTS-RESPONDENTS.

Echostar Satellite L.L.C. v ESPN, Inc.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 2, 2013 Mazzarelli, J.P., Moskowitz, DeGrasse, Feinman, Clark, JJ.

Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered November 18, 2011, which denied plaintiff's motion for judgment notwithstanding the verdict, and order, same court and Justice, entered December 16, 2011, which denied plaintiff's motion to set aside the verdict and for a new trial, unanimously affirmed, without costs.

The court properly denied the motion to set aside the verdict on the ground of juror misconduct. Although the court did not authorize the jurors to take notes during trial, plaintiff failed to demonstrate that it had suffered any prejudice resulting from one juror's preparation of notes at home and use of those notes during deliberations (see Alford v Sventek, 53 NY2d 743, 745 [1981]). Indeed, plaintiff failed to submit an affidavit from any juror regarding the effect of the notes. Although plaintiff's counsel's affirmation stated that other jurors indicated that one juror had used her notes during deliberations, the jurors did not indicate that the notes had swayed the jury's decision. The court properly denied plaintiff's request for a hearing to assess the effect, if any, the notes had on the deliberations. Such a hearing should "not be undertaken except in extraordinary circumstances" (People v Rodriguez, 71 NY2d 214, 218 n 1 [1988]), which are not present here.

Plaintiff's claim that the court erred in delivering a confusing response to a jury question is unpreserved (see CPLR 4110-b; Martinez v Te, 75 AD3d 1, 5 [1st Dept 2010]), and we decline to review it in the interests of justice. Were we to review it, we would reject it. By reading the instructions previously given to the jury on the issue, the court conveyed the germane legal principles to be applied in the case (see e.g. Mercy Community Hosp. v Cannon Design, 235 AD2d 405, 405-406 [2d Dept 1997]). Moreover, plaintiff made no showing that the jury was substantially confused by the court's response, especially since the jury made no further requests for clarification after the court had answered the question (see Martinez, 75 AD3d at 7).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 2, 2013

CLERK

20130402

© 1992-2013 VersusLaw Inc.



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