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Varano v. FORBA Holdings, LLC

Supreme Court, Onondaga County

September 16, 2013

Kelly Varano, as parent and natural guardian of infant JEREMY BOHN, Plaintiffs,
v.
FORBA Holdings, LLC n/k/a/ Church Street Health Management, LLC; FORBA, N.Y., LLC; FORBA, LLC n/k/a LICSAC, LLC; FORBA NY, LLC n/k/a LICSAC NY, LLC; DD Marketing, Inc.; Small Smiles Dentistry of Syracuse, LLC; Daniel E. DeRose; Michael A. DeRose, D.D.S.; Edward J. DeRose, D.D.S.; Adolph R. Padula, D.D.S.; William A. Mueller, D.D.S.; Michael W. Roumph; Naveed Aman, D.D.S.; Koury Bonds, D.D.S. and Yaqoob Khan, D.D.S., Defendants.

Richard Frankel, Esq. Hackerman Frankel, PC

Kevin E. Hulslander, Esq. Smith, Sovik, Kendrick & Sugnet, PC

Dennis A. First, Esq.O'Connor, O'Connor, Bresee & First, PC

Theresa B. Marangas, Esq. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP

Deborah H. Karalunas, J.

This constitutes the court's decision concerning the issue of third party juror contact and the motion of plaintiff Jeremy Bohn for a new trial.

I. Background

On October 9, 2013, a six-person jury delivered a unanimous defense verdict in this matter after a 15-day trial. Immediately after the verdict, the jurors disclosed to the court that they believed they had been stalked throughout the course of their jury service. The jurors identified their stalker as a man who had watched the trial in the public gallery, taking notes on his laptop computer.

On October 10, 2013, the court questioned the identified man, Scott Greenspan, in open court with counsel for all parties present. The court described its prior conversation with the jury:

THE COURT: Following the verdict, I went into the juror room, as I always do, to personally thank the jurors. I asked the jurors, as I always do, whether they had any questions at all.
The first question the jurors asked me was whether they did a good job. The second question the jurors asked me was who was the individual who was stalking them throughout this trial. When I inquired of the jurors what did the person look like who was "stalking" them, to use the juror's word, they advised me that it was the individual who I had admonished — I don't know that the jury used that word — during the course of the trial, the individual with the computer.
The jurors described for me their interactions with you, Mr. Greenspan. They used the word you were creepy, that you were very seedy, that you were in the elevator with them frequently, that you followed them to various places where they had lunch, identifying four restaurants; that you were waiting in the lobby of the court[house] and got into the elevator with them after lunch to ride up in the elevator with them.
The conversation — they also stated that the conversation you described having with the jurors in the elevator was that you were asked who were you and whether you were a reporter, and your response was that, "I'm not supposed to talk with you. I wish I could talk with you. I really wish I could talk with you." And you repeated that multiple times.
One juror expressed a concern that you were videotaping them. You were the subject of conversation amongst the jury throughout the course of the trial. The jurors — one of the jurors observed that you were speaking with [defendant] Dan DeRose, [defendant] Mike Roumph, and [defense counsel] Mr. First out in the Columbus Circle area. That juror then told the rest of the jurors that she figured out who you were because you were speaking to those individuals.
They described that you would follow them where they went to lunch, and at one point they ducked into a restaurant and observed out the window that you were panicking because you couldn't see them.

Tr. of 10/10/13 at 7-9. On October 16, 2013 the court questioned one of the jurors in camera but on the record and under oath. The testimony of this juror confirmed the court's summary of the conversation in the jury room immediately after the verdict. Tr. of 10/16/13 at 2-3, 7-9. The juror in his/her own words described Mr. Greenspan's conduct:

THE WITNESS: He followed us everywhere. When we would go to lunch, he'd follow us to where we were going. One day we had an hour and 15 minutes, a little bit of extra time, so we walked down to Armory Square to Blue Tusk. And I told the other jurors, this guy is following us everywhere. So after the third time I saw him, I ...

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