Gallegos v. Elite Model Management Corp.Gallegos v. Elite Model Management Corp.
Hoguet Newman & Regal, LLP, New York City (Joshua D. Rievman and Sarah K. Barickman of counsel), for Gerald Marie and Mary Ann D‘Angelico, appellants.
Salans, New York City (Peter J. Gallagher and Paul C. Gunther of counsel), for Monique Pillard, appellant.
Beldock, Levine & Hoffman, LLP, New York City (Robert L. Herbst and Spencer Freedman of counsel), for respondent.
OPINION OF THE COURT
GONZALEZ, J.
On this appeal, we must decide whether the trial court‘s substitution of two alternate jurors in the place of two discharged jurors, after deliberations had commenced and without defendants’ consent, violated defendants’ constitutional and statutory right to a civil trial jury of six persons who deliberate on all matters. Because we find that absent the parties’ consent, the procedure employed by the court violates both the State Constitution and
In this employment discrimination action, plaintiff Victoria Gallegos alleges that her former employer, Elite Model Management Corporation, failed to provide her with a reasonable accommodation for her asthma-related disability. She further asserts that defendants created a hostile work environment because of her disability and fired her in retaliation for asserting her rights under the state and city antidiscrimination laws.
The trial evidence established that plaintiff was recruited for employment at Elite by John Casablancas, its cofounder and majority shareholder. It was Casablancas‘s intention to hire and train plaintiff to become an executive coordinator, who would
Plaintiff commenced her employment at Elite on September 20, 1999, whereupon it soon became clear that the no-smoking laws were not being enforced at Elite‘s premises. As part of her training, plaintiff was required to work closely with the company‘s bookers, many of whom were heavy smokers. Plaintiff made repeated requests to Pillard, Casablancas, D‘Angelico and Gerald Marie, a copresident of Elite, to enforce the no-smoking laws and accommodate her need for a smoke-free environment. With the exception of a single memo from D‘Angelico, circulated on September 27, 1999, which stated that smoking was not permitted on the premises, defendants made no efforts to enforce the smoking prohibition or accommodate plaintiff‘s condition.
On October 11, 1999, plaintiff was advised that she would be sitting with the bookers the next day. In response to plaintiff‘s concerns about the heavy smoking, D‘Angelico suggested that she bring a gas mask. In addition, plaintiff testified that she experienced other acts of harassment, such as when she discovered 10 matchbooks placed in the top drawer of her desk, and another time when a cigarette lighter was attached to her cell phone with a rubberband. Although plaintiff reported these incidents to defendants and continued to request an accommodation for her condition, defendants failed to take any action to alleviate the problem.
On October 26, 1999, plaintiff was informed that her job responsibilities had changed and she was to become a booker. After being told that she could either accept this lower position or leave, she accepted. Meanwhile, her asthma condition worsened due to her exposure to smoke at Elite. She suffered at least two serious asthma attacks and, on November 3, 1999, her doctor diagnosed sinusitis and recommended that she undergo a nasal endoscopy to determine the extent of damage to her sinuses. When plaintiff returned to work on November 5, 1999, she told
Later that day, plaintiff was given a letter from Elite‘s counsel, accusing her of dramatizing her illness and advising her to stay home on paid leave while considering whether she wanted to continue at Elite. Plaintiff asked D‘Angelico if she was being fired, and D‘Angelico responded that she should consult an attorney. On November 8, 1999, plaintiff received a letter formally terminating her employment.
Plaintiff commenced the instant action against Elite and the individual defendants for discrimination based on her disability in violation of the New York State and New York City Human Rights Laws (
During jury deliberations in the damages trial, two sitting jurors were discharged after revealing that one of them had contact with defendant D‘Angelico in the ladies restroom during the damages trial. The juror involved had told the second juror about this incident. According to the first juror, D‘Angelico told her in the restroom that “the reason [plaintiff] got fired from Barney‘s was because she tried to bring a lawsuit against them,” to which the juror responded, “that figures.” After being assured by both jurors that none of the other jurors were aware of this incident, the court discharged them and substituted the two alternate jurors. The court informed the newly constituted panel that “you are going to start the deliberations from scratch . . . there is to be no conversation about what was discussed before the new jurors, the former alternates were placed on the jury . . . [i]t is as if you were starting from the very beginning.”
Subsequently, defendants moved pursuant to
The trial court granted the motion solely to the extent of ordering a new trial on damages for pain and suffering unless plaintiff stipulated to a reduction of those damages to $1.1 million. The court also ruled that defendants’ argument concerning the alternate jurors was unpreserved, since defense counsel did not object to the initial retention of the alternates or their eventual substitution.
On appeal, defendants Pillard, Marie and D‘Angelico argue that the court committed reversible error at the damages trial by retaining two alternate jurors after the case was submitted to the jury and by substituting the alternates for two original jurors in the middle of jury deliberations.1 We agree.
New York‘s rules governing the composition of civil trial juries are found in
“The reason that there is no provision for substitu-
tion after the case has been submitted to the jury is that the Advisory Committee felt that ‘[i]t is in only rare situations that the procedure could be used, and it is believed that an alternate juror who enters the jury room after deliberation has begun is not fully qualified to render an intelligent verdict, having missed part of the discussion and consideration which makes up the deliberative process.’ (Second Prelim. Report of Advisory Committee on Practice and Procedure [N.Y. Legis. Doc., 1958, No. 13], p. 228.)”
These same concerns were reflected in Ryan itself, which involved the substitution of an alternate juror for an ill juror after five hours of jury deliberations in a criminal case. The Court explained that such procedure, despite being authorized by statute, violated the defendant‘s constitutional guarantee to a trial by a jury of 12:
“We believe that the Constitution of this State, as it has been construed, prohibits the substitution of an alternate juror—in effect a 13th juror—after the jury has begun its deliberation. While it may be difficult in an individual case to evaluate the extent to which a defendant may be prejudiced by such a substitution, we believe that, once the deliberative process has begun, it should not be disturbed by the substitution of one or more jurors who had not taken part in the previous deliberation and who had cease[d] to function as jurors” (Ryan, 19 NY2d at 104-105 [citation and internal quotation marks omitted]).
Although Ryan was a criminal case, its rationale is equally applicable to civil actions because the right to a jury trial is guaranteed by the State Constitution in both civil (6 jurors) and criminal (12 jurors) cases (see
Here, despite the trial court‘s initial recognition that postsubmission substitution would constitute “fundamental error,” the
Supreme Court rejected defendants’ argument concerning the improper substitution of the alternate jurors on the ground that the argument was not preserved by objections at the time of the jurors’ retention and substitution, relying on this Court‘s decision in Fader v Planned Parenthood of N.Y. City (278 AD2d 41 [2000]). There, the plaintiff contended that the court violated
Fader is distinguishable from this case in two separate respects. First, even though the alternate jurors in Fader were not discharged as required by
Prior to the submission of the case to the jury, plaintiff‘s counsel requested that the court keep the alternates “on call”
“[DEFENSE COUNSEL]: I have no problem, your Honor. I don‘t know what your experience is in doing that.
“THE COURT: I have never done it. I‘ve never done it. My understanding is that once they start deliberating, you can‘t add alternate jurors. And even if you tell them to start from scratch, they‘re really not starting from scratch and they‘re not going to be able to be privy to all the discussions that have taken place and the decisions that have been made prior to their coming. I don‘t think it would stand up on appeal. But, if its on consent, you know, your other alternative is, if you lose a juror, you can consent to having five jurors render a unanimous verdict.
“[PLAINTIFF‘S COUNSEL]: That would be preferable. If [defense counsel] will be willing to do that, then you won‘t have that problem.
“[DEFENSE COUNSEL]: We don‘t have a problem with that.
“THE COURT: My problem is I think it is a fundamental error.
“[PLAINTIFF‘S COUNSEL]: I don‘t think so. It is a procedure I have seen utilized before.
“THE COURT: Nobody appeals, you can get away with it. Is nobody going to appeal that?
“[DEFENSE COUNSEL]: Well, we don‘t know what the law is on it.
“THE COURT: You see? I won‘t do that unless everybody consents.
“[PLAINTIFF‘S COUNSEL]: He‘s consenting.
“[DEFENSE COUNSEL]: But I don‘t know what the law is.
“THE COURT: Consent not to take an appeal.
“[DEFENSE COUNSEL]: That‘s why I asked your Honor for your view of it. If it is something you did, then I have no problem with it. If you think there is going to be fundamental error, then I‘m not consenting to it. . . .
“[PLAINTIFF‘S COUNSEL]: If you don‘t dismiss them, at least you have [] the option to consider it if the problem comes up.
“THE COURT: We‘re going to have this argument all over again.
“[PLAINTIFF‘S COUNSEL]: Only if it happens.
“[PLAINTIFF‘S COUNSEL]: By then we can do research.
“THE COURT: All right. Okay.
“[DEFENSE COUNSEL]: One other thing, your Honor.
“THE COURT: I‘m not agreeing to it, I‘m going to go through the motion.”
After this discussion, the court informed the alternates that they were being kept on call and should remain available by phone. Defense counsel raised no additional objection at this time. Some hours later, the issue of the juror‘s contact with D‘Angelico arose, and the court spoke at length with both jurors in the presence of counsel. After these discussions, plaintiff‘s counsel urged the court to discharge the two tainted jurors, to empanel the two alternate jurors and to direct the newly constituted jury to recommence deliberations from the beginning. The following colloquy ensued:
“THE COURT: Okay, I get the message.
“[PLAINTIFF‘S COUNSEL]: and begin the deliberations from the beginning.
“THE COURT: Anything from defendant‘s side?
“[DEFENSE COUNSEL]: I just don‘t know if everything has been poisoned they can‘t deliberate. I agree it‘s
“[OTHER DEFENSE COUNSEL]: We don‘t know. I mean, we had this discussion the other day concerning the use of alternates and I hoped that we would never have to cross the bridge where we would have to ascertain what the law was, whether or not this was going to be reversible error by doing. I still don‘t know the answer to that.
“THE COURT: Well, in the interest of preserving the nine weeks that we have been at trial, I‘m going to go out on a limb and I‘m going to replace the two jurors. I don‘t think that even if I get reversed, we wouldn‘t be any worse off than we would have been if I declared a mistrial.”
Contrary to Supreme Court‘s finding in its denial of defendants’ motion to vacate the verdict, defense counsel did object to the retention and substitution of the alternate jurors. Although he initially stated that he had “no problem” with the retention, after hearing the court‘s belief that it would constitute “fundamental error” on several occasions, counsel firmly stated “If you think there is going to be fundamental error, then I‘m not consenting.” Given this clear objection, plaintiff‘s argument appears to have shifted to the assertion that defense counsel did not properly follow up on this objection, or that the objection was not “unambiguous.”
While defense counsel‘s objection could have been more forceful, the fact remains that he did raise the objection and he never expressly consented to any substitution. An objection must be clear enough to apprise the court of the nature of the objection (see
Defendants’ remaining arguments do not merit any further relief. Defendants Pillard, Marie and D‘Angelico argue that the
The first claimed error is the court‘s instruction to the jury that Pillard was an “employer” under the state Human Rights Law. Pillard never objected to this instruction, which, in any event, was appropriate. Pillard, as cofounder, president and a 10% shareholder of Elite, with significant managerial responsibilities, clearly met the test for employer status set out by the Court of Appeals in Patrowich v Chemical Bank (63 NY2d 541, 543-544 [1984]; see also Brotherson v Modern Yachts, 272 AD2d 493, 494 [2000] [corporate employee may be subject to individual liability under Human Rights Law if he or she has an ownership interest in corporate employer]).
The second charge error alleged by Pillard similarly relates to the court‘s instructions on individual liability under the state Human Rights Law. With respect to the failure-to-accommodate claim as against Casablancas and Pillard individually, the court instructed:
“Under the State Human Rights Law if an individual has an ownership in the company or [ ] has managerial authority to make personnel decisions such as hiring, firing or controlling work conditions, then he or she may be liable for the unlawful actions of an employee or agent. . . .
“[I]f you find that any responsible employee or agent of Elite unlawfully failed to accommodate plaintiff‘s disability, you may find Casablancas and Pillard individually liable under the State Human Rights Law” (emphasis added).
Pillard contends on appeal that this instruction constituted reversible error since the court failed to include an additional charge that notwithstanding her “employer” status under the law, she could not be held liable unless the jury found that she became a party to the discrimination by “encouraging, condon-
This specific argument is unpreserved for appellate review. Although Pillard‘s counsel did suggest at the precharge conference that the proposed instruction suggested “automatic” liability for the acts of subordinates, her sole specific request to the court was that it omit any reference to any “employee or agent of Elite” from the second-quoted paragraph above, and simply limit the phrase to the word “Elite” (“If you find that Elite unlawfully failed to accommodate plaintiff‘s disability“). Now, on appeal, Pillard makes a different argument—that the court should have instructed the jury that she could not be found liable unless she “encourag[ed], condon[ed] or approv[ed]” of an employee‘s discriminatory conduct. As indicated, however, she never made this request before the trial court, but instead insisted on the limitation mentioned above.
More to the point, however, is the fact that her suggested limitation would have done nothing to advance her appellate contention that the court should have included language to negate a strict liability standard. In fact, if the subject phrase was limited to the word “Elite,” as requested, the charge still would not have required a jury finding that Pillard bore any personal blame for the discriminatory acts, since the term “Elite” could refer to the company alone or any number of unidentified persons. Moreover, it was plaintiff‘s counsel, not Pillard‘s, who convinced the court to insert the term “responsible” before the phrase “employee or agent,” in order to suggest that no liability would exist unless management persons such as Pillard were involved in the discriminatory conduct. Accordingly, since Pillard‘s request for an instruction that she could not be liable unless she was a party to the discriminatory conduct of others was made for the first time on appeal, it is unpreserved for appellate review.
In any event, were any error to exist, we would find it harmless since the jury was instructed on the city Human Rights Law claim that the individual defendants must have been “responsible for, assisted or failed to rectify” the discriminatory conduct in order to be held liable, and thus did consider the is-
Finally, we need not consider defendants’ arguments concerning the amount of the damage awards in light of our determination to remand for a new trial on damages due to the improper substitution of alternate jurors.
Accordingly, the judgment of the Supreme Court, New York County (Louis B. York, J.), entered January 8, 2004, which, after a jury trial, awarded plaintiff damages in the amount of $1,886,419.48 as against all defendants, and $2,765,402.74 in punitive damages as against defendant Elite, and bringing up for review an order, same court and Justice, entered January 8, 2004, which granted defendants’ posttrial motions only to the extent of vacating the jury‘s award for pain and suffering and ordering a new trial on those damages unless plaintiff stipulated to a reduced award of $1.1 million, to which plaintiff stipulated, should be modified, on the law, the motion granted to the additional extent of vacating the jury‘s damages verdict and remanding the matter for a new trial on the issue of damages only, and otherwise affirmed, with costs in favor of plaintiff payable by defendant Mary Ann D‘Angelico.
MAZZARELLI, J.P., SAXE, ELLERIN and CATTERSON, JJ., concur.
Judgment, Supreme Court, New York County, entered January 8, 2004, modified, on the law, the motion granted to the additional extent of vacating the jury‘s damages verdict and remanding the matter for a new trial on the issue of damages only, and otherwise affirmed, with costs in favor of plaintiff payable by defendant Mary Ann D‘Angelico.