(concurring). Because the record indicates substantial confusion among the jurors in reaching their verdict, the verdict should have been set aside pursuant to CPLR 4404 (a) and a new trial held against defendant Montefiore on liability and damages (see e.g. Dinino v D.A.T. Constr. Corp., 267 AD2d 148, 149 [1st Dept 1999]).
*3The jury’s finding that Montefiore’s departure from good and accepted medical practice in allowing a knot pusher tip to remain in plaintiff’s body was not a proximate cause of plaintiff’s injuries was inconsistent with the jury note indicating that it believed that plaintiff should be compensated $50,000 for having to undergo a second surgery
An examination of the record reveals that the special verdict sheet was “unclear and confusing” (Wingate v Long Is. R.R., 92 AD2d 797, 798 [1st Dept 1983]), because it did not provide for an award of damages caused by the need to undergo a second surgery The confusing and ambiguous wording of the verdict sheet caused the jurors to experience substantial confusion in reaching their verdict (see Moore v Bohlsen Assoc., 141 AD2d 468, 468 [1st Dept 1988]). While “[t]he amgibuity had been brought to the attention of the Trial Justice before the jury was discharged and could have been corrected or at least clarified at that time” (Wingate, 92 AD2d at 798), the court did not do so and a new trial against Montefiore is required to prevent a miscarriage of justice.
Kapnick, J. (concurring). In 2007, then 30-year-old plaintiff, Mark Srikishun, agreed to donate a kidney to his father, who had been on dialysis. During the nephrectomy (the kidney retrieval surgery), which occurred on May 17, 2007, a foreign object known as a “knot pusher tip” was left inside plaintiff’s body. As a result, plaintiff was required to undergo a second surgery five days later on May 22, 2007, under general anesthesia, to remove the foreign object. Plaintiff then commenced this action against Michael Edye, M.D., the attending physician, Montefiore Medical Center, where the surgery took place, and Montefiore’s employees—Raphael Tare, M.D., S. Johnson, P.A., Olga Zimlin, M.D., E. Cherune, R.N., and D. Perez, S.T.—to recover damages for the injuries he sustained, inter alia, as a result of having to undergo the second surgery.
The case proceeded to a jury trial in January 2013, during which plaintiff testified that he “went through quite of a bit of a personal trauma with the second surgery” because of the risk associated with “going under anesthesia a second time,” and because when he awoke in the operating room on the table there were still tubes in his mouth, he was strapped to the table and he could not move his arms or legs. He also testified that he was in a lot of pain and discomfort, yet he was told he couldn’t stay in the hospital and had to go home that same day.
On January 29, 2013 the jury rendered a unanimous verdict answering Wes” to question No. 1 on the verdict sheet, which *4asked the following: “1. Did defendant Montefiore Medical Center, through the conduct of its health care professionals including nurses and surgical technicians, depart from good and accepted medical practice by causing and permitting the knot pusher tip to be and remain in plaintiff’s body following the May 17, 2007 surgery?”
However, they answered “No” to question No. 2* which asked: “2. Was this departure in allowing the knot pusher tip to remain in plaintiff’s body a substantial factor in causing and/or contributing to plaintiff’s injuries?”
The jury sent three notes to the court. The first note asked for a readback of some of Dr. Edye’s testimony, which was read back by the court reporter. At approximately 2:00 or 2:15 p.m., the jury returned from the lunch recess, and the court indicated that it had a note from the jury, “that’s note two, saying, We reached a verdict.’ ” After the clerk took the verdict, the court, in the presence of counsel and the jury stated as follows: “Let the record reflect that after a verdict was rendered, the jury sent me out a note.” At the court’s request, the clerk then read the note, which was written at 1:29 p.m., less than an hour prior to the verdict being taken in the courtroom. The note stated as follows: “Although we’ve reached a verdict, we believe that Mr. Srikishun should be compensated due to the fact that he had to undergo a second surgery, which was not included in the agreement. He should be compensated $50,000 due to the hospital’s negligence.”
The court proceeded immediately, without any input from counsel, to advise the jury that this third note, “which you gave to me after you rendered a verdict, is surplusage” and “has no bearing in law.” In response, plaintiff’s counsel stated that the note implied that the jury thought question No. 2 did not cover the damages for the second surgery, that this was an error by the jury, and that they should be given the opportunity to answer that question again. Once the jury was excused, plaintiff argued that the court should have apprised counsel of the existence of the third note and read it to them before the court took the verdict so the court, with input from counsel, could correct any errors. Specifically, plaintiff’s counsel requested that the court reinstruct the jury that they should consider the second surgery as an element of damages for *5which plaintiff could be compensated. Plaintiffs application was denied and the jury was then polled as to the verdict.
Subsequently, plaintiff moved on papers, pursuant to CPLR 4404 (a), to set aside that portion of the jury’s verdict which found no proximate cause on the part of Montefiore and direct a new trial solely on the issue of damages. In support of his motion, plaintiff argued that once the jury found that defendant Montefiore was negligent, damages had to be awarded to plaintiff for having to undergo the second surgery, even if the jury didn’t credit plaintiff’s other theory put forth during trial that he sustained neurological injuries due to an inflammatory response associated with the retention of the knot pusher tip. Plaintiff further argued that Dr. Edye acknowledged that there would be a certain amount of pain and discomfort that necessarily goes along with the second procedure, and that plaintiff had also testified as to both the physical and mental trauma associated with the actual performance of the second procedure. According to plaintiff, counsel for defendant Montefiore conceded in her closing that damages had to be awarded to plaintiff and suggested to the jury that plaintiff should be awarded $1,000 for each minute of the 11-minute surgery. Plaintiff also argued that damages necessarily flow from the performance of a second surgery due to a retained foreign object as long as a departure is established in connection therewith, as was the case here. Finally, plaintiff argued that a trial court has the discretion to set aside a verdict which is clearly the product of substantial confusion by the jury, and that the verdict was against the weight of the evidence.
In opposition, defendant Montefiore emphasized that the jury ratified its verdict in the courtroom after issuing the third note. Montefiore argued that the jury clearly understood that the law allowed them to award damages to plaintiff only if they found he had proved that Montefiore’s negligence was a substantial factor in causing or contributing to his injuries, which they did not. Defendant also argued that the record contained examples of plaintiff’s failure to testify candidly before the jury, and disputed plaintiff’s characterization of the summation as a concession that plaintiff was entitled to damages.
The court denied plaintiffs motion and this appeal ensued.
We find that the trial court erred in failing to set aside the verdict in favor of Montefiore. Under CPLR 4404 (a), a trial court has the discretion to set aside a verdict and grant a new *6trial, if the verdict is clearly the product of substantial confusion among the jurors (see Rodriguez v Baker, 91 AD2d 143, 147 [1st Dept 1983], affd 61 NY2d 804 [1984]; Batal v Associated Univs., Inc., 18 AD3d 484, 486 [2d Dept 2005]). Such confusion is typically demonstrated when the answers to the questions on the verdict sheet are internally inconsistent (Batal, 18 AD3d at 486). Here, the answer to question No. 2 on the verdict sheet is inconsistent with the third jury note, demonstrating substantial juror confusion. While this confusion could have been remedied had the note been disclosed to the attorneys prior to taking the verdict, and had the court resubmitted the issue to the jury for further deliberation after additional instructions on damages, that opportunity was missed and a new trial against Montefiore is now warranted.
While we certainly agree with our concurring colleagues (Saxe and Manzanet-Daniels, JJ.) that one of the functions of appellate review is to provide helpful guidance to the trial bench, we do not think it is necessary to go so far as to suggest the specific language to be used in the special verdict questions by the trial judge who presides over the next trial. Although we know what the case is about, the exact contents of the questions will depend on how the testimony, including evidence about the damage claims, is developed at the new trial. Therefore, the questions should not be drafted by us before the second trial even begins. Moreover, it appears to us that the trial attorneys and the trial judge will certainly be able to figure out how to reword the special verdict questions after reading our extensive discussions on the problems and confusion encountered by the jury during the first trial, as discerned from the contents of the jury notes. We believe our approach gives sufficient guidance to the trial judge and the lawyers. We disagree with the concurrence’s (Saxe, J.) suggestion that this approach will “dramatically increase [ ] the possibility of yet a third trial” (concurring op of Saxe, J., at 8); rather, we believe that writing out suggested questions to place on the verdict sheet gives very little credit to the legal acumen of the trial lawyers and the trial judge who will handle this case the next time around.
In light of our determination, it is unnecessary to address plaintiff’s remaining argument that the verdict was against the weight of the evidence.
The jury also answered “No” to question No. 3, finding no departure on Dr. Edye’s part, but that finding was not appealed.