Marine Midland Bank v. Russo

Marine Midland Bank (bank) (plaintiff) sued John and Rita Russo and five others (alleged kiters) (defendants) for fraud and conversion, alleging that the Russos engaged in check kiting. Check kiting was the practice of drawing checks against deposits that had not yet cleared through the bank-collection process. Pursuant to Civil Practice Law and Rules (CPLR) § 4111, the supreme court instructed the jury to return a general verdict with answers to 12 special interrogatories. The first 10 interrogatories asked the jury to state whether each alleged kiter committed fraud or conversion. The eleventh interrogatory asked the jury to determine in what amount, if any, the bank was injured. The twelfth interrogatory asked the jury to state whether John and Rita had satisfied the bank’s claims. In its first 10 interrogatory answers, the jury found that no alleged kiter committed fraud or conversion. In its answer to the eleventh interrogatory, the jury stated that the bank lost $309,800. The jury did not answer the twelfth interrogatory and did not provide a general verdict. Before the court discharged the jury, the bank moved to set aside the verdict on the sole ground that the jury’s answers were inconsistent. Two days later, after the court discharged the jury, the bank filed formal posttrial motions pursuant to CPLR Article 44, in which the bank argued that the court should have asked the jury to clarify its answers and that the absence of a general verdict was a fatal defect. The supreme court denied the bank’s motions. The appellate division affirmed. The bank appealed.