Arizmendi v. City of New York — 56 N.Y.2d 753

Majority

p. 753

Irma Arizmendi, Respondent, et al., Plaintiff, v City of New York et al., Appellants.

p. 754

Argued April 2, 1982;

decided May 13, 1982

APPEARANCES OF COUNSEL

Frederick A. O. Schwarz, Jr., Corporation Counsel (Larry A. Sonnenshein and Francis F. Caputo of counsel), for appellants.

Robert G. Harley for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Appellants contend that they were effectively deprived of their constitutional guarantee of a jury of six persons when after a poll a juror revealed that he neither deliberated nor voted on the issue of damages because he was the sole dissenter on the issue of liability. Appellants first raised this claim, however, in connection with a posttrial motion to set aside the verdict. In that appellants failed to raise this objection before the jury was discharged and thereby afforded the trial court no opportunity to correct

p. 755

the claimed error by returning the jury for additional deliberation on the issue of damages, appellants have waived their objection to the juror’s nonparticipation in deliberations or voting on that issue (Barry v Manglass, 55 NY2d 803 , 806).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.

Cases cited

Barry v. Manglass 55 NY2d 803 N.Y. 1981-12-23 at 806 p. 755