Defense Verdict Reinstated on Appeal; Failure to Poll Jury Deemed Harmless Error

In Duffy v. Vogel, 2007 N.Y. Slip Op. 10075 (1st Dep’t 2007), Marc Hyman obtained a defense verdict in a medical malpractice case involving the alleged failure to diagnose and properly treat a malignant tumor. The trial court later granted plaintiff’s post-trial motion for a new trial on the ground that it had failed to poll the jury upon taking the verdict. The court relied on centuries-old case law holding that jury polling is an “absolute” right.

On appeal, defendant, represented by Dan Ratner, argued that the error was harmless because the verdict was read in open court and the verdict sheet was signed in multiple places by each of the jurors, indicating that the verdict was reliable and sound. Declining to follow a recent decision by another panel of the Appellate Division, First Department holding that the failure to poll the jury creates an automatic right to a new trial, the majority in Duffy accepted our argument that the circumstances of this case did not warrant a rigid application of the rule, which would have lead to an unfair result.