Article 41. Trial by A Jury

TRIAL BY A JURY

The Sections of Article 41. of the CPLR:

Article 41 of CPLR Trial by Jury

NY CPLR § 4101. ISSUES TRIABLE BY A JURY REVEALED BEFORE TRIAL

In the following actions, the issues of fact shall be tried by a jury unless a jury trial is waived or a reference is directed under section 4317 , except that equitable defenses and equitable counterclaims shall be tried by the court:

  1. an action in which a party demands and sets forth facts which would permit a judgment for a sum of money only;
  2. an action of ejectment;  for dower;  for waste;  for abatement of and damages for a nuisance;  to recover a chattel;  or for determination of a claim to real property under article fifteen of the real property actions and proceedings law;  and
  3. any other action in which a party is entitled by the constitution or by express provision of law to a trial by jury.

NY CPLR § 4102. DEMAND AND WAIVER OF TRIAL BY JURY; SPECIFICATION OF ISSUES

(a) Demand. Any party may demand a trial by jury of any issue of fact triable of right by a jury, by serving upon all other parties and filing a note of issue containing a demand for trial by jury.  Any party served with a note of issue not containing such a demand may demand a trial by jury by serving upon each party a demand for a trial by jury and filing such demand in the office where the note of issue was filed within fifteen days after service of the note of issue.  A demand shall not be accepted for filing unless a note of issue is filed in the action.  If no party shall demand a trial by jury as provided herein, the right to trial by jury shall be deemed waived by all parties.  A party may not withdraw a demand for trial by jury without the consent of the other parties, regardless of whether another party previously filed a note of issue without a demand for trial by jury.

(b) Specification of issues. In his demand a party may specify the issues which he wishes tried by jury;  otherwise he shall be deemed to have demanded trial by jury of all issues so triable.  If he has demanded trial by jury of only some of the issues, any other party within ten days after service of the demand may serve and file a demand for trial by jury of any other issues in the action so triable.

(c) Waiver. A party who has demanded the trial of an issue of fact by a jury under this section waives his right by failing to appear at the trial, by filing a written waiver with the clerk or by oral waiver in open court.  A waiver does not withdraw a demand for trial by jury without the consent of the other parties.  A party shall not be deemed to have waived the right to trial by jury of the issues of fact arising upon a claim, by joining it with another claim with respect to which there is no right to trial by jury and which is based upon a separate transaction;  or of the issues of fact arising upon a counterclaim, cross-claim or third party claim, by asserting it in an action in which there is no right to trial by jury.

(d) Local rules. The chief administrator of the courts may by rule provide that a party shall be deemed to have demanded trial by jury by filing a note of issue not containing an express waiver of trial by jury.

(e) Relief by court. The court may relieve a party from the effect of failing to comply with this section if no undue prejudice to the rights of another party would result.

NY CPLR § 4103. ISSUES TRIABLE BY A JURY REVEALED AT TRIAL; DEMAND AND WAIVER OF TRIAL BY JURY

When it appears in the course of a trial by the court that the relief required, although not originally demanded by a party, entitles the adverse party to a trial by jury of certain issues of fact, the court shall give the adverse party an opportunity to demand a jury trial of such issues.  Failure to make such demand within the time limited by the court shall be deemed a waiver of the right to trial by jury.  Upon such demand, the court shall order a jury trial of any issues of fact which are required to be tried by jury.

NY CPLR § 4104. NUMBER OF JURORS

A jury shall be composed of six persons.

NY CPLR § 4105. PERSONS WHO CONSTITUTE THE JURY

The 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.

NY CPLR § 4106. ALTERNATE JURORS

One or more additional jurors, to be known as “alternate jurors”, may be drawn upon the request of a party and consent of the court.  Such alternate juror or jurors shall be drawn at the same time, from the same source, in the same manner, and have the same qualifications as regular jurors, and be subject to the same examinations and challenges.  They shall be seated with, take the oath with, and be treated in the same manner as the regular jurors.  After final submission of the case, the court may, in its discretion, retain such alternate juror or jurors to ensure availability if needed.  At any time, before or after the final submission of the case, if a regular juror dies, or becomes ill, or is unable to perform the duties of a juror, the court may order that juror discharged and draw the name of an alternate, or retained alternate, if any, who shall replace the discharged juror, and be treated as if that juror had been selected as one of the regular jurors.  Once deliberations have begun, the court may allow an alternate juror to participate in such deliberations only if a regular juror becomes unable to perform the duties of a juror.

NY CPLR RULE RULE 4107. JUDGE PRESENT AT EXAMINATION OF JURORS

On application of any party, a judge shall be present at the examination of the jurors.

NY CPLR § 4108. CHALLENGES GENERALLY

An objection to the qualifications of a juror must be made by a challenge unless the parties stipulate to excuse him.  A challenge of a juror, or a challenge to the panel or array of jurors, shall be tried and determined by the court.

NY CPLR § 4109. PEREMPTORY CHALLENGES

The plaintiff or plaintiffs shall have a combined total of three peremptory challenges plus one peremptory challenge for every two alternate jurors.  The defendant or defendants (other than any third-party defendant or defendants) shall have a combined total of three peremptory challenges, plus one peremptory challenge for every two alternate jurors.  The court, in its discretion before the examination of jurors begins, may grant an equal number of additional challenges to both sides as may be appropriate.  In any case where a side has two or more parties, the court, in its discretion, may allocate that side’s combined total of peremptory challenges among those parties in such manner as may be appropriate.

NY CPLR § 4110. CHALLENGES FOR CAUSE

(a) Challenge to the favor. The fact that a juror is in the employ of a party to the action;  or if a party to the action is a corporation, that he is a shareholder or a stockholder therein;  or, in an action for damages for injuries to person or property, that he is a shareholder, stockholder, director, officer or employee, or in any manner interested, in any insurance company issuing policies for protection against liability for damages for injury to persons or property;  shall constitute a ground for a challenge to the favor as to such juror.  The fact that a juror is a resident of, or liable to pay taxes in, a city, village, town or county which is a party to the action shall not constitute a ground for challenge to the favor as to such juror.

(b) Disqualification of juror for relationship. Persons shall be disqualified from sitting as jurors if related within the sixth degree by consanguinity or affinity to a party.  The party related to the juror must raise the objection before the case is opened;  any other party must raise the objection no later than six months after the verdict.

NY CPLR § 4110-a. COMPETENCY OF INHABITANTS AS JUSTICES OR JURORS; UNDERTAKINGS NOT REQUIRED OF VILLAGE

 In an action brought by or against a village it shall not be an objection against the person acting as justice or juror in such action that he is a resident of the village or subject to taxation therein.  It shall not be necessary for the village to give a bond, undertaking or security to appeal or to obtain a provisional remedy, or to take or prevent any other proceeding;  or to do or perform any act or thing notwithstanding any provision of any other law to the contrary, but the village shall be liable to the same extent as if it had given the bond, undertaking or security otherwise required by or in pursuance of law.

NY CPLR § 4110-b. INSTRUCTIONS TO JURY; OBJECTION

At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests.  The court, out of the hearing of the jury, shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed.  No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating the matter to which he objects and the grounds of his objection.  Opportunity shall be given to make the objection out of the hearing of the jury.

NY CPLR § 4110-c. TRIAL JURY; VIEWING OF PREMISES

  1. When during the course of a trial the court is of the opinion that a viewing or observation by the jury of the premises or place where alleged injuries to person or property were sustained in an accident or occurrence claimed to have been the cause thereof or of any other premises or place involved in the case will be helpful to the jury in determining any material factual issue, it may in its discretion, at any time before the commencement of the summations, order that the jury be conducted to such premises or place for such purpose in accordance with the provisions of this section.
  2. In such case, the jury must be kept together throughout under the supervision of an appropriate public servant or servants appointed by the court, and the court itself must be present throughout.  The parties to the action and counsel for them may as a matter of right be present throughout, but such right may be waived.
  3. The purpose of such an inspection is solely to permit visual observation by the jury of the premises or place in question and neither the court, the parties, counsel nor the jurors may engage in discussion or argumentation concerning the significance or implications of anything under observation or concerning any issue in the case.

NY CPLR RULE RULE 4111. GENERAL AND SPECIAL VERDICTS AND WRITTEN INTERROGATORIES

(a) General and special verdict defined.  The court may direct the jury to find either a general verdict or a special verdict.  A general verdict is one in which the jury finds in favor of one or more parties.  A special verdict is one in which the jury finds the facts only, leaving the court to determine which party is entitled to judgment thereon.

(b) Special verdict.  When the court requires a jury to return a special verdict, the court shall submit to the jury written questions susceptible of brief answer or written forms of the several findings which might properly be made or it shall use any other appropriate method of submitting the issues and requiring written findings thereon.  The court shall give sufficient instruction to enable the jury to make its findings upon each issue.  If the court omits any issue of fact raised by the pleadings or evidence, each party waives his right to a trial by jury of the issue so omitted unless before the jury retires he demands its submission to the jury.  As to an issue omitted without demand, the court may make an express finding or shall be deemed to have made a finding in accordance with the judgment.

(c) General verdict accompanied by answers to interrogatories.  When the court requires the jury to return a general verdict, it may also require written answers to written interrogatories submitted to the jury upon one or more issues of fact.  The court shall give sufficient instruction to enable the jury to render a general verdict and to answer the interrogatories.  When the answers are consistent with each other but one or more is inconsistent with the general verdict, the court shall direct the entry of judgment in accordance with the answers, notwithstanding the general verdict, or it shall require the jury to further consider its answers and verdict or it shall order a new trial.  When the answers are inconsistent with each other and one or more is inconsistent with the general verdict, the court shall require the jury to further consider its answers and verdict or it shall order a new trial.

(d) Itemized verdict in medical, dental, or podiatric malpractice actions.  In all actions seeking damages for medical, dental, or podiatric malpractice, or damages for wrongful death as a result of medical, dental, or podiatric malpractice, the court shall instruct the jury that if the jury finds a verdict awarding damages it shall in its verdict specify the applicable elements of special and general damages upon which the award is based and the amount assigned to each element, including but not limited to medical expenses, dental expenses, podiatric expenses, loss of earnings, impairment of earning ability, and pain and suffering.  In all such actions, each element shall be further itemized into amounts intended to compensate for damages which have been incurred prior to the verdict and amounts intended to compensate for damages to be incurred in the future.  In itemizing amounts intended to compensate for future wrongful death damages, future loss of services, and future loss of consortium, the jury shall return the total amount of damages for each such item.  In itemizing amounts intended to compensate for future pain and suffering, the jury shall return the total amounts of damages for future pain and suffering and shall set forth the period of years over which such amounts are intended to provide compensation.  In itemizing amounts intended to compensate for future economic and pecuniary damages other than in wrongful death actions, the jury shall set forth as to each item of damage, (i) the annual amount in current dollars, (ii) the period of years for which such compensation is applicable and the date of commencement for that item of damage, (iii) the growth rate applicable for the period of years for the item of damage, and (iv) a finding of whether the loss or item of damage is permanent.  Where the needs change in the future for a particular item of damage, that change shall be submitted to the jury as a separate item of damage commencing at that time.  In all such actions other than wrongful death actions, the jury shall be instructed that the findings it makes with reference to future economic damages, shall be used by the court to determine future damages which are payable to the plaintiff over time.

(e) Itemized verdict in certain actions.  In an action brought to recover damages for personal injury, injury to property or wrongful death, which is not subject to subdivision (d) of this rule, the court shall instruct the jury that if the jury finds a verdict awarding damages, it shall in its verdict specify the applicable elements of special and general damages upon which the award is based and the amount assigned to each element including, but not limited to, medical expenses, dental expenses, loss of earnings, impairment of earning ability, and pain and suffering.  Each element shall be further itemized into amounts intended to compensate for damages that have been incurred prior to the verdict and amounts intended to compensate for damages to be incurred in the future.  In itemizing amounts intended to compensate for future damages, the jury shall set forth the period of years over which such amounts are intended to provide compensation.  In actions in which article fifty-A or fifty-B of this chapter applies, in computing said damages, the jury shall be instructed to award the full amount of future damages, as calculated, without reduction to present value.

NY CPLR RULE RULE 4112. ENTRY OF VERDICT

When the jury renders a verdict, the clerk shall make an entry in his minutes specifying the time and place of the trial, the names of the jurors and witnesses, the general verdict and any answers to written interrogatories, or the questions and answers or other written findings constituting the special verdict and the direction, if any, which the court gives with respect to subsequent proceedings.

NY CPLR § 4113. DISAGREEMENT BY JURY

(a) Unanimous verdict not required. A verdict may be rendered by not less than five-sixths of the jurors constituting a jury.

(b) Procedure where jurors disagree. Where five-sixths of the jurors constituting a jury cannot agree after being kept together for as long as is deemed reasonable by the court, the court shall discharge the jury and direct a new trial before another jury.

Updated: April 6, 2019

Scroll to Top