| Love v Rockwell's Intl. Enters., LLC |
| 2011 NY Slip Op 03219 [83 AD3d 914] |
| April 19, 2011 |
| Appellate Division, Second Department |
| Ricky Love, Respondent, v Rockwell's InternationalEnterprises, LLC, Defendant, and Percell Smith and Sons, Incorporated,Appellant. |
—[*1] Sivin & Miller, LLP, New York, N.Y. (Edward Sivin of counsel), for respondent.
In an action, inter alia, to recover damages for battery, the defendant Percell Smith and Sons,Incorporated, appeals from a judgment of the Supreme Court, Kings County (Steinhardt, J.),entered February 19, 2010, which, upon a jury verdict in favor of the plaintiff on his cause ofaction to recover damages for battery and awarding him damages in the sum of $250,000 for pastpain and suffering, and upon an order of the same court dated December 11, 2009, denying itsmotion, inter alia, pursuant to CPLR 4404 (a) to set aside the jury verdict and for judgment as amatter of law, is in favor of the plaintiff and against it in the principal sum of $250,000.
Ordered that the judgment is reversed, on the facts and as an exercise of discretion, withcosts, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issueof damages for past pain and suffering only, unless, within 30 days after service upon theplaintiff of a copy of this decision and order, with notice of entry, he shall serve and file in theoffice of the Clerk of the Supreme Court, Kings County, a written stipulation consenting toreduce the verdict for past pain and suffering against the defendant Percell Smith and Sons,Incorporated, from the principal sum of $250,000 to the principal sum of $175,000, and to theentry of an appropriate amended judgment; in the event that the plaintiff so stipulates, then thejudgment, as so reduced and amended, is affirmed, without costs or disbursements.
On January 29, 2006, the plaintiff was a patron at a club in Brooklyn owned and operated bythe defendant Percell Smith and Sons, Incorporated (hereinafter the appellant). The plaintiffclaims that while inside the club, he became engaged in a verbal dispute with another patron overa spilled drink. A bouncer employed by the appellant then allegedly intervened by forciblyremoving the plaintiff from the club. According to the plaintiff and a second witness, during thecourse of ejecting the plaintiff, the bouncer either pushed him or banged him against a brick wall,causing the plaintiff's face to strike the wall. At the conclusion of a unified trial, the jury returneda verdict finding that the appellant's employee had committed a battery upon the plaintiff, andawarding the plaintiff damages for past pain and suffering in the principal sum of $250,000.Approximately three months later, the appellant moved, inter alia, pursuant to CPLR 4404 (a) toset aside the jury verdict and for judgment as a matter of law. In support of its motion, theappellant contended, for the first time, that the bouncers who worked at its club wereindependent contractors rather than employees, [*2]and that itthus could not be held liable for the bouncer's actions under the doctrine of respondeat superior.The Supreme Court denied the appellant's motion and entered judgment in favor of the plaintiff.
Contrary to the appellant's contention, it waived the issue of whether the bouncer whocommitted the battery was an independent contractor rather than an employee by failing to raisethis issue as an affirmative defense in its answer (see CPLR 3018 [b]; Butler v Catinella, 58 AD3d 145,150 [2008]; Jordan v Villetto, 38AD3d 716, 717 [2007]; Becker v Shore Drugs, 296 AD2d 515, 516 [2002]), or as adefense at trial.
The appellant's contention that the verdict sheet should have asked the jury to make a specificfactual determination as to whether the bouncer who committed the battery was acting within thescope of his employment is unpreserved for appellate review since the appellant failed to raiseany objection to the verdict sheet (see CPLR 4017, 5501 [a] [3]; Ross v Mandeville, 45 AD3d 755,757 [2007]; Kwa v Roberts, 18AD3d 444 [2005]; Kinney v Taylor, 305 AD2d 466, 467 [2003]; Laboda v VJVDev. Corp., 296 AD2d 441 [2002]; Rock v City of New York, 294 AD2d 480, 481[2002]; Siagha v Salant-Jerome, Inc., 271 AD2d 274 [2000]).
We reject the appellant's argument that expert medical evidence was necessary to prove thatthe battery caused the plaintiff's broken jaw. Under the circumstances of this case, "the results ofthe alleged assault and battery are within the experience and observation of an ordinarylayperson" (Breen v Laric EntertainmentCorp., 2 AD3d 298, 300 [2003]; see Lanpont v Savvas Cab Corp., 244 AD2d208, 212 [1997]).
Unlike our dissenting colleague, we find that the appendix, which contains the complete trialtranscript, is adequate to determine whether the jury's award of damages for past pain andsuffering was excessive. Considering the nature and extent of the plaintiff's injury, the damagesaward materially deviates from what would be reasonable compensation, and is excessive to theextent indicated herein (see CPLR 5501 [c]; Atkinson v Buch, 17 AD3d 222 [2005]). Mastro, J.P., Eng andSgroi, JJ., concur.
Skelos, J., dissents, and votes to dismiss the appeal to the extent the appellant raises issuesregarding damages, and affirm only insofar as the judgment brings up for review issues relatingto liability, with the following memorandum: On appeal, the defendant Percell Smith and Sons,Incorporated (hereinafter the appellant), seeks, among other things, a reduction in the award ofdamages for past pain and suffering in the amount of $250,000 on the ground that the award isexcessive. At trial, the plaintiff chose not to present medical testimony, but to rely on the medicalrecords, admitted into evidence, and the plaintiff's testimony, in order to establish damages. Thesignificance of the medical records in establishing damages is apparent from the plaintiff'scounsel's summation, in which he expressly referred the jury to the medical records, and, inparticular, to the operative report, for a description of the plaintiff's injuries and the treatmentrequired therefor. Notwithstanding the critical importance of the medical records to the plaintiff'sproof of damages, and despite the fact that the appellant argues before this Court that the amountof damages deviates from what would be reasonable compensation for the plaintiff's injuries, theappellant failed to include the medical records in its appendix.
" 'An appellant who perfects an appeal by using the appendix method must file an appendixthat contains all the relevant portions of the record in order to enable the court to render aninformed decision on the merits of the appeal' " (Christian v Graham, 73 AD3d 676, 677 [2010], quoting Matter of Passalacqua, 31 AD3d648, 648 [2006]; see CPLR 5528; 22 NYCRR 670.10-b). Here, in my view, theappellant's failure to include in the appendix the medical records that were essential toestablishing damages prevents this Court from rendering an informed decision on the merits ofthe appellant's argument that the damages award is excessive. Accordingly, I would dismiss thatportion of the appeal (see Miller vCruise Fantasies, Ltd., 74 AD3d 921, 921-922 [2010]; Christian v Graham, 73AD3d at 677; Gandolfi v Gandolfi,66 AD3d 834, 835 [2009]; Abrahams v Greenwood Trust Co., 51 AD3d 695 [2008]; Ayers v Ayers, 37 AD3d 629, 630[2007]; Cohen v 1651 Carroll [*3]Realty Corp., 23 AD3d 603 [2005]; Lucadamo v Bridge To Life, Inc., 12AD3d 422 [2004]; Patel v Patel, 270 AD2d 241, 242 [2000]), and respectfullydissent from the majority's adjudication of this issue on the merits.
Although I agree with the majority on the issues relating to liability, I would dismiss theappeal to the extent that it raises issues regarding damages.