| Killon v Parrotta |
| 2015 NY Slip Op 01690 [125 AD3d 1220] |
| February 26, 2015 |
| Appellate Division, Third Department |
[*1]
| Stacy S. Killon, Respondent, v Robert A. Parrotta,Appellant. |
Gregory V. Canale, Glens Falls, for appellant.
Brennan & White, LLP, Queensbury (Joseph R. Brennan of counsel), forrespondent.
Lynch, J. Appeals (1) from an order of the Supreme Court (Muller, J.), enteredDecember 31, 2013 in Warren County, which, among other things, granted plaintiff'smotion to set aside the verdict on the issue of certain damages and ordered a new trial onsuch damages, and (2) from the judgment entered thereon.
Plaintiff commenced this action to recover for injuries sustained when defendantstruck him in the face with a metallic baseball bat. After a jury returned a verdict indefendant's favor, this Court reversed the order and judgment and remitted the matter toSupreme Court for a new trial (98 AD3d 828 [2012]). At the second trial, the juryreturned a verdict in favor of plaintiff on the issue of liability and awarded him damagesin the amount of $200,000 for past medical expenses and $25,000 for future pain andsuffering; the jury awarded no damages for past pain and suffering. Upon the parties'motions, the court, among other things, set aside the verdict as to the damages for pastand future pain and suffering and directed a new trial on said damages. Defendant nowappeals.
We reject defendant's claim that Supreme Court erred because it did not issue ajustification charge to the jury. The justification defense is not available to the initialaggressor, and defendant concedes that, pursuant to this Court's prior decision, he wasthe "initial aggressor" (98 AD3d at 830; see Penal Law § 35.15 [1][b]). The purpose of the law of the case doctrine is "to avoid the retrial of issues alreadydetermined in the same case. Its application is exclusively to questions of law and makesa legal determination in a given case binding upon all parties" (Brown v State of NewYork, 250 AD2d 314, 320 [1998] [citations omitted]). By the prior decision, thisCourt, with knowledge that plaintiff was the first to swing, determined that "the [*2]jury's conclusion that defendant was not the first to threatenthe immediate use of physical force is unreachable on any fair interpretation of theevidence" (98 AD3d at 830). At the retrial, the parties confirmed that the testimony andevidence were not different from that considered during the first trial. Under thecircumstances presented, therefore, we perceive no error in the court's refusal to issue thejustification charge.
Defendant also contends that Supreme Court should have given the jury a charge oncomparative fault (see CPLR 1411). We disagree. To begin, although the courtgave such an instruction in the first trial, we do not agree with defendant that the courtwas bound to give the same charge in the second trial (see Halpern v Amtorg TradingCorp., 292 NY 42, 47-48 [1944]; New York State Urban Dev. Corp. vWanger, 90 AD2d 648, 648 [1982], lv denied 59 NY2d 602 [1983]). We alsorecognize that "culpable conduct" as described in CPLR 1411 includes "intentionalmisconduct" (Arbegast v Board of Educ. of S. New Berlin Cent. School, 65NY2d 161, 167 [1985] [internal quotation marks and citation omitted]). In a civil actionfor assault, however, "a defendant may show, in mitigation of damages, that [the]plaintiff's words or actions immediately preceding the assault provoked defendant'sassault" (Pirodsky v Pirodsky, 179 AD2d 1066, 1066 [1992]; see Totaro v Scarlatos, 63AD3d 1144, 1145 [2009]; 2A NY PJI2d 3:3 at 18). Here, in lieu of a comparativefault charge under CPLR 1411, the court instructed the jury that it could consider anycontemporaneous, provocative conduct on plaintiff's part in mitigation of plaintiff'sdamages award. By so charging, the relative degree of culpability as to damages betweenplaintiff and defendant was duly presented to the jury.[FN*]
Defendant also contends that Supreme Court erred by not granting a mistrial orissuing a curative instruction after Leah Printy, defendant's ex-wife and plaintiff's friend,testified that, prior to the incident at issue, defendant had threatened to beat her. Weperceive no error. " '[E]vidence is relevant if it tends to prove the existence ornonexistence of a material fact, i.e., a fact directly at issue in the case' " (Johnson v Ingalls, 95 AD3d1398, 1399 [2012], quoting People v Primo, 96 NY2d 351, 355 [2001]).Evidence of prior bad acts may be admissible where the acts "provide necessarybackground or complete a witness's narrative" (People v Tarver, 2 AD3d 968, 969 [2003]). Here, plaintifftestified that he telephoned and threatened defendant after Printy disclosed to him thatdefendant had threatened her. As the court charged the jury to consider plaintiff'sprovocative conduct in mitigation of damages (see 2A NY PJI2d 3:3), Printy'stestimony was relevant because it provided context for plaintiff's conduct, wasinextricably interwoven with the evening's events and bore on the jury's consideration ofthe mitigation issue (see People v Tarver, 2 AD3d at 969).
Finally, based on our review of the record, we find that Supreme Court properly setaside the award for plaintiff's past and future pain and suffering. Generally, "the amountawarded as damages for personal injuries is a factual question for the jury" (Vogel v Cichy, 53 AD3d877, 878 [2008] [internal quotation marks and citation omitted]), and a court may setaside such award as inadequate only where "it deviates materially from what would bereasonable compensation" (CPLR 5501 [c]; accord Vogel v Cichy, 53 AD3d at878). To determine whether an award is reasonable, we must consider comparable cases,and " 'the nature, extent and permanency of the injuries, the extent of past,present and future pain and the long-term effects of the injury' " (Vincent v Landi, 123 AD3d1183, 1186 [2014], quoting Nolan v Union Coll. Trust of Schenectady, N.Y., 51 AD3d1253, 1256 [2008], lv denied 11 NY3d 705 [2008]).
[*3] Here, plaintiff's surgeon, Robert DeFatta, testified that,to repair plaintiff's shattered mandible and open fracture in his mouth, he had to performa tracheotomy before repairing the lacerations in plaintiff's mouth and surgicallyreconstructing the bone fragments within a mesh device that, ideally, would promoteregrowth of the bone. DeFatta explained that, due in part to the traumatic injuries toplaintiff's mouth, the bone did not grow as hoped and plaintiff suffered recurringinfections. Consequently, DeFatta conducted seven more procedures to clean the area,remove teeth, remove bone fragments and the mesh device, and to attempt to close a holethat had formed through plaintiff's skin at his jaw line. DeFatta testified that plaintiff willlikely need further reconstructive surgery and that, as a result of his injuries, plaintiff'sdiet has been limited, his speech affected and he suffers from chronic pain.
Based on DeFatta's and plaintiff's uncontroverted testimony, coupled with thecommon-sense conclusion that plaintiff suffered a painful injury (see Albanese v Przybylowicz,116 AD3d 1216, 1219 [2014]), we find that the jury's failure to award damages forplaintiff's past pain and suffering deviated materially from reasonable compensation(see Vogel v Cichy, 53 AD3d at 880; Scott v Yurkewecz, 234 AD2d 673,674-675 [1996]). Further, we agree with Supreme Court that the jury's award for futurepain and suffering should have been itemized (see CPLR 4111 [e]), and ourability to review the award pursuant to CPLR 5501 (c) is impeded without suchitemization. Nevertheless, having considered both comparable cases and the record anduncontroverted medical testimony, we find that a new trial is required on the issues ofpast and future pain and suffering unless defendant stipulates to an award of $200,000for past pain and suffering and $150,000 for future pain and suffering (see Love v Rockwell's Intl. Enters.,LLC, 83 AD3d 914, 915-916 [2011] [$175,000 for past pain and suffering forbroken jaw, no surgery]; Atkinson v Buch, 17 AD3d 222, 222 [2005] [$75,000 forpast pain and suffering for broken jaw, no surgery]; Stiuso v City of New York,228 AD2d 663, 663-664 [1996] [$650,000 for past pain and suffering and $487,500 forfuture pain and suffering for broken jaw with loss of one eye]; Sorensen vNazarian, 175 AD2d 417, 418 [1991] [$150,000 past pain and suffering and $50,000future pain and suffering for broken jaw and loss of teeth]; Wingate v City of NewYork, 2013 NY Slip Op 33687[U], *2-3 [2013] [$65,000 for past pain and sufferingand $104,000 for future pain and suffering for broken jaw with two surgeries]). In theevent that a new trial is held, the resulting damages award should be itemized pursuant toCPLR 4111 (e).
McCarthy, J.P., Egan Jr. and Clark, JJ., concur. Ordered that the order and judgmentare modified, on the facts, without costs, by ordering a new trial on the issues of past andfuture pain and suffering unless, within 20 days after service of a copy of the orderherein, defendant stipulates to increase the awards for past pain and suffering to$200,000 and for future pain and suffering to $150,000, in which event said order andjudgment, as so modified, are affirmed.
Footnote *:The jury determined thatplaintiff's conduct did not provoke defendant.