| Geraci v Probst |
| 2009 NY Slip Op 02971 [61 AD3d 717] |
| April 14, 2009 |
| Appellate Division, Second Department |
| Ronald Geraci, Respondent-Appellant, v Thomas Probst,Doing Business as Hendrickson Truck Center, et al.,Appellants-Respondents. |
—[*1] Hopkins & Kopilow, Garden City, N.Y. (Michael Hopkins of counsel), forrespondent-appellant.
In an action, inter alia, to recover damages for defamation, the defendants appeal, as limitedby their brief, from so much of a judgment of the Supreme Court, Nassau County (DeMaro, J.),entered September 14, 2007, as, upon a jury verdict finding that the plaintiff sustained damagesin the principal sum of $2,950,000 ($2,450,000 in compensatory damages and $500,000 inpunitive damages), and upon an order of the same court dated June 22, 2007, granting thedefendant's motion to set aside the jury verdict and for a new trial to the extent of granting a newtrial on the issue of damages unless the plaintiff consented to reduce the verdict as to damages tothe principal sum of $800,000 ($750,000 in compensatory damages and $50,000 in punitivedamages), and upon the plaintiff's consent to so reduce the verdict as to damages, is in favor ofthe plaintiff and against the defendants jointly and severally in the principal sum of $750,000,and in favor of the plaintiff and against the defendant Thomas Probst individually in the sum of$50,000, and the plaintiff cross-appeals, on the ground of inadequacy, from the same judgment.
Ordered that the cross appeal is dismissed, without costs or disbursements, on the groundthat the plaintiff is not aggrieved by the judgment in the amount of $800,000 entered upon theplaintiff's stipulation (see CPLR 5511); and it is further,[*2]
Ordered that the judgment is affirmed insofar as appealedfrom, without costs or disbursements.
The plaintiff Ronald Geraci was a commissioner of the Syosset Fire District (hereinafter theSFD) at the same time that he was business partner with the defendant Thomas Probst in LongIsland Fire Apparatus, Inc., a company which sold fire trucks to Long Island fire districts.Following differences with Probst, the plaintiff commenced the instant action to recoverdamages sustained as a result of a defamatory statement allegedly made by Probst that theplaintiff had illegally profited from a business transaction involving the SFD.
After trial, the jury returned a verdict in favor of the plaintiff and against the defendants inthe total sum of $2,950,000, including: $1,250,000 for present injury to reputation; $500,000 forpresent mental anguish; $400,000 for present loss of income; $250,000 for future injury toreputation, for a period of five years; $0 for future mental anguish; $50,000 for future loss ofincome, for two years; and punitive damages of $500,000. The defendants moved to set aside thejury verdict as excessive and for a new trial. The Supreme Court granted the defendants' motionto the extent of granting a new trial with respect to damages unless the plaintiff consented toreduce the damages award to the principal sum of $800,000 ($750,000 in compensatory damagesand $50,000 in punitive damages). After the plaintiff consented to the reduction, the trial courtentered judgment in his favor and against the defendants.
The defendants appeal and the plaintiff cross-appeals from the judgment. On appeal, thedefendants contend that the trial court committed numerous errors, including allowing intoevidence portions of a related Newsday article and the plaintiff's testimony regarding the NassauCounty District Attorney's investigation, as well as charging the jury that Probst's statementconstituted defamation per se. On his cross appeal, the plaintiff contends that the trial court erredin reducing the jury's award of damages.
The elements of a cause of action for defamation are a " 'false statement, published withoutprivilege or authorization to a third party, constituting fault as judged by, at a minimum, anegligence standard, and it must either cause special harm or constitute defamation per se' " (Salvatore v Kumar, 45 AD3d 560,563 [2007], quoting Dillon v City of New York, 261 AD2d 34, 38 [1999]). A falsestatement constitutes defamation per se when it charges another with a serious crime or tends toinjure another in his or her trade, business, or profession (see Liberman v Gelstein, 80NY2d 429, 437-438 [1992]; Matovcik vTimes Beacon Record Newspapers, 46 AD3d 636, 637 [2007]). Upon a finding that afalse statement has alleged a serious crime, a court may, absent any privilege, send the issue to ajury for a determination of damages (see Liberman v Gelstein, 80 NY2d at 436). Here,the Supreme Court properly charged the jury that Probst's statement concerning the plaintiffconstituted defamation per se (see General Municipal Law §§ 801, 805;Liberman v Gelstein, 80 NY2d at 435).
The defendants' contention that the trial court erred in allowing testimony as to republicationof Probst's defamatory statements by Newsday is unpreserved for appellate review (seeCPLR 5501; Firth v State of New York, 98 NY2d 365, 372 [2002]). The defendants'contention that the trial court erred in allowing testimony about an investigation of the plaintiffby the District Attorney's office is without merit, as the evidence demonstrated that theinvestigation was caused by Probst's own defamatory statements (see Garrison v Sun Print. &Publ. Assn., 207 NY 1, 8 [1912]). In addition, the trial court properly allowed testimonyabout an out-of-court statement regarding the extent of the effect of Probst's defamatorystatements on the plaintiff's reputation, as the testimony was not [*3]hearsay (see Gelpi v 37th Ave. Realty Corp., 281 AD2d392 [2001]).
A party who consents to a trial court's reduction of a damages award is not aggrieved by theresulting judgment, and therefore is not entitled to appeal from that judgment (see CPLR5511; Zhagnay v Royal Realty Co., 87 NY2d 954 [1996]). Accordingly, the plaintiff'scross appeal must be dismissed. However, the plaintiff may be afforded relief pursuant to CPLR5501 (a) (5) (see Hecht v City of New York, 60 NY2d 57, 63 n [1983]; Papa v Cityof New York, 194 AD2d 527, 532 [1993]; Donohoe v Goldner, 168 AD2d 412, 413[1990]).
In determining whether a jury's award of damages is excessive, the court should considerwhether the award "deviate[s] materially from what would be reasonable compensation"(see CPLR 5501 [c]; K. Capolino Constr. Corp. v White Plains Hous. Auth., 275AD2d 347, 349 [2000]). Here, the Supreme Court properly determined that the damage awardswere excessive, and appropriately reduced the same to the extent indicated.
The defendants' remaining contentions are either unpreserved for appellate review(see CPLR 5501; Firth v State of New York, 98 NY2d at 372), waived (see Santiago v Rodriguez, 38 AD3d639, 640 [2007]), or without merit. Spolzino, J.P., Santucci, Balkin and Chambers, JJ.,concur.