| Dobies v Brefka |
| 2007 NY Slip Op 08326 [45 AD3d 999] |
| November 8, 2007 |
| Appellate Division, Third Department |
| David Dobies, Respondent, v Bernice Brefka,Appellant. |
—[*1] Flink Smith, L.L.C., Latham (Edward B. Flink of counsel), for respondent.
Carpinello, J. Appeal from a judgment of the Supreme Court (Reilly, Jr., J.), entered August28, 2006 in Schenectady County, upon a verdict rendered in favor of plaintiff.
Suffice it to say, there is a long history of litigation between these parties and members ofdefendant's family (see Dobies v Brefka, 273 AD2d 776 [2000], lv dismissed 95NY2d 931 [2000]; Dobies v Brefka, 263 AD2d 721 [1999]; see also Matter of Brefkav Dobies, 271 AD2d 876 [2000], lv denied 95 NY2d 759 [2000]). Now before us is adefamation action emanating from defendant's accusations in 1996 that plaintiff sexually abusedhis then three-year-old daughter (her granddaughter). When the matter finally went to trial, twodefamation causes of action were submitted to the jury. The first cause of action stems from ahandwritten document authored by defendant in July 1996 detailing an alleged conversationbetween herself and her granddaughter in which the child purportedly made statementssuggesting sexual contact between herself and her father. Notably, during this time period,plaintiff was embroiled in a bitter custody dispute with defendant's daughter. Following a hotlinereport and investigation, the allegations were determined to be unfounded. The second cause ofaction stems from defendant's November 1996 statement to a Department of Social Servicescaseworker that her granddaughter had disclosed to her that plaintiff had touched her, that therehad been an investigation and that it was unfounded.
The jury ultimately determined that the July 1996 statement was defamatory but that the[*2]November 1996 statement was not. It awarded plaintiff$225,000 in compensatory damages, $50,000 in counsel fees as special damages, $20,000 in lostwages and $30,050 in punitive damages. Defendant's motion to set aside the verdict was denied.She now appeals.
Defendant argues that the verdict is against the weight of the evidence because she testifiedwithout contradiction that her granddaughter had indeed made the subject accusations againstplaintiff and that the resulting three-page document detailing their conversation was true.However, a jury, as the sole judge of the facts, is free to weigh and discredit the testimony of anyfactual witness, even in the absence of direct proof contradicting such witness's version of events(see Matter of Nowakowski, 2 NY2d 618, 622 [1957]). Here, it is clear that the juryrejected defendant's testimony about the alleged disclosure of sexual abuse by her granddaughter,and we find no basis upon which to interfere with this credibility determination. Moreover, wefind that a fair interpretation of the evidence supports the jury verdict in favor of plaintiff (seeLolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]).
With respect to the award of $225,000 in compensatory damages, the record reveals that, as aresult of the heinous allegations leveled against him, plaintiff was permitted only supervisedvisitation with his children for a significant period of time and was also forced to resign from hisposition as a physician at a local hospital and to relocate to another community (compareRossignol v Silvernail, 185 AD2d 497, 499 [1992], lv denied 80 NY2d 760 [1992]).Given the demonstrated harm to his emotional well-being and professional reputation, the awardis fairly supported by the evidence and does not deviate from what is reasonable compensation(see CPLR 5501 [c]; Morsette v The Final Call, 309 AD2d 249, 256-257 [2003],appeal dismissed 5 NY3d 756 [2005]). The record further reveals that plaintiff incurred$50,000 in counsel fees as a result of defendant's defamatory actions thereby justifying thespecial damage award in this amount.
Finally, while defendant claims that there was no proof supporting the punitive damagesaward, we are again unpersuaded. The jury was free to disregard defendant's self-servingtestimony that she has never harbored any ill will or bad feelings toward plaintiff and insteadcredit that proof which suggested that she intentionally made these false accusations against himout of spite and anger over his tumultuous relationship with her daughter and his then recentsuccess in obtaining temporary custody of her grandchildren. Charitably stated, defendant'stestimony concerning her feelings toward plaintiff, a man who had reportedly sexually abused hergranddaughter, was disingenuous and, thus, sufficient evidence was presented to support theaward of punitive damages (see Fregoev Fregoe, 33 AD3d 1182, 1184 [2006]; compare Morsette v The Final Call, 309AD2d at 256-257; Rossignol v Silvernail, 185 AD2d at 499).
Defendant's contention that the verdict was inconsistent is unpreserved for review since theissue was not raised until after the jury was discharged (see Barry v Manglass, 55 NY2d803, 806 [1981]). Even if we were to consider the argument, we would not find the verdictinconsistent. Having reviewed and rejected defendant's remaining contentions, we affirm.
Cardona, P.J., Mercure, Crew III and Kane, JJ., concur. Ordered that the judgment isaffirmed, with costs.