Marand Construction Corp. v. Rapid Rehabilitation Corp.

In an action, inter alia, to recover the balance due upon a construction contract and for extra work and services performed, (1) defendant appeals from a money judgment of the Supreme Court, Queens County, entered March 1, 1976, upon a jury verdict which was in favor of the plaintiff in the main action and in its favor on the counterclaim, and (2) plaintiff (a) cross-appeals from the same judgment on the ground of inadequacy and (b) appeals from an order of the same court, dated February 26, 1976, which denied its motion to amend the verdict to specify the date from which interest was to run. Appeal from the order dismissed (see Matter of Aho, 39 NY2d 241, 248). Judgment reversed, on the law and in the interests of justice, and new trial granted. One bill of costs to cover both appeals is awarded to abide the event of the new trial. The trial in this case was characterized by intense acrimony between opposing counsel, into which the trial court was drawn. In our view, the acrimonious atmosphere which prevailed at the trial was so severe as to fundamentally impair the ability of the jury to reach an intelligent and fair verdict based solely upon the evidence before it and, accordingly, a new trial must be granted (see Morris Cohon & Co. v Pennsylvania Coal & Coke Corp., 10 AD2d 667, 668; Kohlmann v City of New York, 8 AD2d 598; Bowen v Mahoney Coal Corp., 256 App Div 485, 486). The principal issue at the trial was whether some 40 items of construction were "additional work”, or "extra work”, within the technical meaning of the construction contract and the plans and specifications thereof. Upon the retrial, these plans and specifications should be introduced into evidence [1042] (see Taft v Little, 178 NY 127). In view of the determination reached herein, the other issues raised on this appeal have not been considered. Latham, J. P., Damiani, Suozzi and Gulotta, JJ., concur.