| Estate of Ferguson v City of New York |
| 2010 NY Slip Op 04504 [73 AD3d 649] |
| May 27, 2010 |
| Appellate Division, First Department |
| Estate of Malcolm Ferguson, Deceased, by Juanita Young, asAdministratrix, Appellant-Respondent, v City of New York et al.,Respondents-Appellants. |
—[*1]
Order, Supreme Court, Bronx County (Kenneth L. Thompson Jr., J.), entered July 15, 2008,which, to the extent appealed from, granted so much of defendants' motion as to set aside thejury's verdict on damages and ordered a new trial on punitive damages unless plaintiff stipulatedto a reduced award of $36,000 for past loss of financial support and services and $186,000 forfuture loss of financial support and services, unanimously modified, on the law and the facts, theawards for past economic support, past and future loss of services and punitive damagesreinstated in the amounts of $55,920, $261,094 and $2.7 million, respectively, and otherwiseaffirmed, without costs.
The trial court properly set aside the award of $3 million for conscious pain and sufferingbecause plaintiff failed to show the decedent's consciousness for at least some period of timefollowing the accident (Cummins v County of Onondaga, 84 NY2d 322 [1994]).Specifically, plaintiff failed to present any evidence that the decedent was conscious or had anycognitive awareness after he was shot in the head, which caused his nearly instantaneous death(see Martin v Reedy, 194 AD2d 255, 259 [1994]). A record that shows practicallyinstantaneous death will not support an award for conscious pain and suffering (see Shatkin vMcDonnell Douglas Corp., 727 F2d 202 [2d Cir 1984]). In Merzon v County ofSuffolk (767 F Supp 432, 444 [ED NY 1991]), the court found that the death of a suspectshot and killed by police was almost instantaneous; he never regained consciousness. Under suchcircumstances, the plaintiff "failed to establish any conscious pain and suffering." (Id.)Plaintiff's conjecture, surmise and speculation that the decedent was consciously suffering is notenough to sustain the claim (Fiederlein v New York City Health & Hosps. Corp., 56NY2d 573 [1982]). Moreover, plaintiff is wrong to assert that the award can be sustained on thetheory that the decedent experienced fear of impending death when Officer Rivera first grabbedhim (see Martin, 194 AD2d at 259). Indeed, there was no evidence that the decedent wasaware that Rivera had drawn his weapon, or that the gun was only inches from his head before hewas shot.
It was error for the court to vacate the jury's award for past economic support. Plaintiff,[*2]the decedent's mother, testified that her son contributed thesum of $50 per week to the household from money he earned through employment. In misplacedreliance on Papa v City of New York (194 AD2d 527 [1993], lv dismissed 82NY2d 918 [1994]), the trial court erroneously dismissed this testimony as speculative. Papastands for the proposition that proof of past lost earnings must be established with"reasonable certainty" (194 AD2d at 531). Such proof can consist of testimony (cf. Kane v Coundorous, 11 AD3d304 [2004]). Those awards for lost services and economic support should be reinstated, asindicated above.
Regarding punitive damages, the court incorrectly determined that the jury's award wasbased in part on its finding that Rivera had negligently handled his weapon. Indeed, there was noevidence that the negligence finding played a part in this award, especially since the verdictsheet specified that punitive damages were based on the jury's finding that Rivera used excessiveforce during the fatal encounter. Furthermore, the jury was properly charged that punitivedamages could only be awarded if it found Officer Rivera's conduct to be wanton, reckless ormalicious (see Rivera v City of NewYork, 40 AD3d 334, 344 [2007]).
On appeal, defendants no longer seek a new trial on punitive damages in order to assessOfficer Rivera's net worth. They also concede that the evidence supported an award of punitivedamages, but assert that the $7 million award was excessive. When reviewing a punitive damageaward for excessiveness, we must examine whether it deviated materially from what isconsidered reasonable compensation (CPLR 5501 [c]). However, "[w]hether to award punitivedamages in a particular case, as well as the amount of such damages, if any, are primarilyquestions which reside in the sound discretion of . . . the jury, and such an award isnot lightly to be disturbed" (Nardelli v Stamberg, 44 NY2d 500, 503 [1978]).
Rivera's conduct, which was in complete disregard of police procedure, to say nothing of thedecedent's rights (including deprivation of his right to life without due process of law), resultedin the latter's death. Defendants mistakenly rely on cases like Papa, which did notinvolve a scenario where someone was shot and killed. On this record, an award of $2.7 millionwould be "reasonably related to the harm done and the flagrancy of the conduct" (see e.g.Liberman v Riverside Mem. Chapel, 225 AD2d 283, 292 [1996]), and consistent with thepurpose of punishing a defendant for wanton and reckless acts, thereby discouraging similarconduct in the future (see Ross v LouiseWise Servs., Inc., 8 NY3d 478, 489 [2007]). Concur—Tom, J.P., Mazzarelli,Andrias, Saxe and DeGrasse, JJ.