State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 9, 2015 519292 

________________________________

JOHN THOMAS PIACENTE,

Respondent,

v

MICHAEL P. BERNSTEIN et al., MEMORANDUM AND ORDER

Defendants,

and

ERIC S. ROCCARIO et al.,

Appellants.

________________________________

Calendar Date: February 11, 2015

Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

__________

Thuillez, Ford, Gold, Butler & Monroe, LLP, Albany (Andrew

L. McNamara of counsel), for Eric S. Roccario and another,

appellants.

Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Robert

A. Rausch of counsel), for Kathleen Ozsvath and another,

appellants.

Silberstein, Awad & Miklos, PC, Garden City (Joseph P. Awad

of counsel), for respondent.

__________

Devine, J.

Appeal from an order of the Supreme Court (Teresi, J.),

entered November 14, 2013 in Albany County, which granted

plaintiff's motion to set aside a verdict in favor of defendants.
-2- 519292 

Plaintiff commenced this medical malpractice action

against, among others, defendants Eric S. Roccario and Prime Care

Physicians, PLLC (hereinafter collectively referred to as the

Roccario defendants) and defendants Kathleen Ozsvath and The

Vasular Group, PLLC (hereinafter collectively referred to as the

Ozsvath defendants) and the action proceeded to trial in August

2013.1 Just prior to the close of proof, plaintiff requested

that Supreme Court, pursuant to CPLR 4105 and 4106, empanel the

first six jurors that had been selected and designate the

remaining two jurors as alternate jurors.2 Concluding that a

local rule enacted in the Third Judicial District regarding jury

selection procedures required that the six deliberating jurors be

chosen randomly by the court clerk, the court denied plaintiff's

request. The jury, which was comprised of juror Nos. 1, 2, 3, 4,

5 and 8, ultimately rendered a verdict of no cause of action. 

Plaintiff then moved, pursuant to CPLR 4404 (a), to set aside the

verdict in the interest of justice, asserting, among other

things, that the violation of his statutory right to designate

the first six jurors selected during voir dire denied him a fair

trial. Supreme Court granted the motion and set aside the

verdict. The Roccario defendants and the Ozsvath defendants now

appeal.

Initially, we find no evidence in the record indicating

1 Summary judgment was granted to defendants Michael P.

Bernstein and Capital Region Cardiology Associates, P.C., and the

action was voluntarily discontinued as to defendants Mikhail

Kirnus, John Taggert and St. Peter's Hospital.

2 CPLR 4105 states that "[t]he first six persons who appear

as their names are drawn and called, and are approved as

indifferent between the parties, and not discharged or excused,

must be sworn and constitute the jury to try the issue." CPLR

4106 provides, among other things, that alternate jurors may be

"drawn upon the request of a party and consent of the court" and

will be selected, seated, sworn and "treated in the same manner

as the regular jurors." This section further provides that, at

the close of proof, "the court may, in its discretion, retain

such alternate juror or jurors to ensure availability if needed."
-3- 519292 

that plaintiff waived any objection to Supreme Court's reliance

on the Third Judicial District jury selection rule.3 "Waiver is

an intentional relinquishment of a known right and should not be

lightly presumed" (Gilbert Frank Corp. v Federal Ins. Co., 70

NY2d 966, 968 [1988] [citation omitted]; see Nassau Trust Co. v

Montrose Concrete Prods. Corp., 56 NY2d 175, 184 [1982]). 

Toward the close of proof, plaintiff notified Supreme Court

that, during voir dire, the parties had operated under the

understanding that the first six jurors to be selected would

ultimately serve and that the seventh and eighth jurors would

become the alternate jurors. Counsel for the Roccario defendants

agreed, stating that plaintiff had explicitly stated prior to

jury selection that "he wanted [jurors 7] and [8] to be

designated [alternates]" and that the parties had selected jurors

accordingly. Counsel for the Ozsvath defendants differed,

however, indicating that, although the parties had a conversation

about designating jurors, no express agreement to that effect had

ever been reached or otherwise communicated to the court. 

Thereafter, the attorney for the Roccario defendants opined that,

because plaintiff had failed to notify the court that he wanted

to designate the jurors before the trial commenced, she presumed

that he had "abandoned" his request. Plaintiff insisted that,

although he had intended to apprise the court at an earlier point

in the trial that he sought to designate alternate jurors, the

demands of the trial had occupied his attention and, further,

that he was unaware that his reliance on the alternate juror

designation statute was objectionable. Thereafter, plaintiff

renewed his objection to the juror selection procedure before the

court directed the clerk to randomly draw the six jurors. On

this basis, we cannot agree that plaintiff waived or otherwise

failed to preserve his objection to the denial of his right to

3 The local rule provides that "[a]ll prospective jurors

(six plus the agreed upon number of alternates) will be selected

at random from the panel and seated in the jury box. Unless

there is consent of all parties and the presiding judge to

designate alternates, the jurors selected will not be designated"

(Civil Procedural Rules of the Third Judicial Dist., available at

http://www.nycourts.gov/courts/3jd/index.shtml). 
-4- 519292 

invoke the statutory juror designation provision at issue here. 

After having determined that its application of the Third

Judicial District rule contravened plaintiff's substantial right

to empanel the first six jurors that had been selected by the

parties, pursuant to the "mandatory procedure" set forth in CPLR

4105, Supreme Court exercised its discretion and granted

plaintiff's motion to set aside the verdict and order a new trial

in the interest of justice. In the absence of evidence that the

court abused such discretion, we will not disturb Supreme Court's

determination in that regard (see CPLR 4404 [a]; Straub v

Yalamanchili, 58 AD3d 1050, 1052 [2009]; Sorel v Iacobucci, 221

AD2d 852, 854 [1995]). 

McCarthy, J.P., Egan Jr. and Clark, JJ., concur.

ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court