On December 29, 2021, an appellate court determined that a Brooklyn jury verdict of $14,705,000 was invalid because of the substitution of a regular juror with an alternate juror in the midst of deliberations, without instructing them to restart deliberations anew so the newly substituted juror could participate on all issues to be decided. This case involved a claim of serious and permanent injuries suffered by the plaintiff who was struck by a New York City Transit Authority (NYCTA) bus while riding as a passenger in a car. The trial was bifurcated with a separate liability and damage phase. After the first phase the jury found the NYCTA 100% at fault. In the second - damage phase the jury had to decide: 1) whether the plaintiff had suffered a "permanent and serious injury"; 2) the amount of money to be awarded to the plaintiff for past and future pain and suffering as well as future medical expenses.

The jury began deliberations in the morning but one juror convinced the trial court to allow him to leave for an afternoon appointment before the jury had concluded deliberations. The Court substituted an alternate juror but neglected to instruct the jurors that they must restart all deliberations anew. Plaintiff's counsel had argued that the 2013 amendment to CPLR 4106 did not require the jury to to commence deliberations from the beginning. The Appellate Division held that " to reconcile CPLR 4106 with the constitutional and statutory requirements for a civil jury verdict, the trial court must, upon substituting an alternate juror in place of a regular juror after deliberations have begun, provide an instruction to the jury directing them to restart their deliberations from the beginning with the substituted juror and disregard and set aside all prior deliberations." Of the six questions on the verdict sheet for the damage phase, four had been decided by the juror who left for his 2 pm appointment (really) and thus it was impossible to poll the missing juror as demanded by defense counsel. "A failure to honor a party's request to poll each of the jurors...mandates reversal and a new trial." Caldwell v NTYCTA, 2021 WL 6130307