| Acosta v City of New York |
| 2011 NY Slip Op 03789 [84 AD3d 706] |
| May 3, 2011 |
| Appellate Division, Second Department |
| Pedro Acosta, Respondent, v City of New York et al.,Appellants. |
—[*1] Roura & Melamed (Alexander J. Wulwick, New York, N.Y., of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from (1) an orderof the Supreme Court, Kings County (Starkey, J.), dated December 18, 2008, which denied theirmotion pursuant to CPLR 4404 (a) to set aside a jury verdict on the issue of liability, with respectto so much of the complaint as sought to recover damages for battery stemming from an incidentin which the plaintiff was allegedly pushed from a garage roof, in favor of the plaintiff andagainst them and for judgment as a matter of law or, alternatively, to set aside the jury verdict ascontrary to the weight of the evidence and for a new trial, and granted their separate motionpursuant to CPLR 4404 (a) to set aside the jury verdict on the issue of damages only to the extentof ordering a new trial unless the plaintiff stipulated to reduce the damages award for future painand suffering to the principal sum of $325,000, and (2) a judgment of the same court datedFebruary 5, 2009, which, upon the order and upon the plaintiff's stipulation, is in favor of theplaintiff and against them in the principal sum of $480,000. By decision and order dated April 6,2010, among other things, this Court reversed the judgment of the Supreme Court, and grantedthat branch of the defendants' motion pursuant to CPLR 4404 (a) which was to set aside the juryverdict and for judgment as a matter of law (see Acosta v City of New York, 72 AD3d 624 [2010]). In amemorandum decision dated October 26, 2010, the Court of Appeals reversed the decision andorder of this Court and remitted the matter to this Court to determine "whether the jury's verdictis in accord with the weight of the evidence and, if so, whether the amount of damages awardedby the jury was excessive" (Acosta vCity of New York, 15 NY3d 881, 882 [2010]).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that, upon remittitur from the Court of Appeals, the judgment is reversed, on thefacts and in the exercise of discretion, that branch of the defendants' motion which was pursuantto CPLR 4404 (a) to set aside the verdict as contrary to the weight of the evidence is granted, andthe matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of liabilitywith respect to so much of the complaint as sought to recover damages for battery stemmingfrom an incident in which the plaintiff was allegedly pushed from a garage roof, and, if liability isfound, for a new trial on the issue of damages for future pain and suffering unless, within [*2]30 days after service upon the plaintiff of a copy of this decisionand order, he shall serve and file in the office of the Clerk of the Supreme Court, Kings County, awritten stipulation consenting to further reduce the verdict as to damages for future pain andsuffering from the principal sum of $325,000 to the principal sum of $280,000; in the event thatthe plaintiff so stipulates, then the jury's findings of fact as to damages for future pain andsuffering, as so reduced and amended, are affirmed.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The plaintiff commenced this action to recover damages for personal injuries alleging that,following a pursuit, he was injured after a New York City police officer pushed him from theroof of a garage, and after another officer pushed him against a fence. Following the trial, a juryrendered a verdict in favor of the plaintiff with respect to so much of the complaint as sought torecover damages for battery stemming from the incident in which the plaintiff was allegedlypushed from the garage roof. The jury found for the defendants with respect to so much of thecomplaint as sought to recover damages for battery based on the incident in which a policeofficer allegedly pushed the plaintiff against a fence. Thereafter, the defendants moved pursuantto CPLR 4404 (a) to set aside the jury verdict on the issue of liability in favor of the plaintiff andfor judgment as a matter of law, or, alternatively, to set aside the jury verdict as contrary to theweight of the evidence and for a new trial. The defendants also moved to set aside the damagesaward as excessive. The Supreme Court granted the defendants' motion to set aside the verdict onthe issue of damages only to the extent of ordering a new trial unless the plaintiff stipulated toreduce the damages award for future pain and suffering to the principal sum of $325,000, andentered judgment in favor of the plaintiff. The defendants appealed, contending, among otherthings, that the jury verdict as to liability should have been set aside as a matter of law, or ascontrary to the weight of the evidence. By decision and order dated April 6, 2010, this Court,inter alia, reversed the judgment and granted that branch of the defendants' motion pursuant toCPLR 4404 (a) which was to set aside the jury verdict and for a judgment as a matter of law (see Acosta v City of New York, 72AD3d 624 [2010]). In a memorandum decision dated October 26, 2010, the Court ofAppeals reversed and remitted the matter to this Court to determine "whether the jury's verdict isin accord with the weight of the evidence and, if so, whether the amount of damages awarded bythe jury was excessive" (Acosta v Cityof New York, 15 NY3d 881, 882 [2010]).
A jury verdict in favor of a plaintiff should not be set aside as contrary to the weight of theevidence unless the evidence so preponderated in favor of the defendant that the jury could nothave reached the verdict by any fair interpretation of the evidence (see Lolik v Big VSupermarkets, 86 NY2d 744, 746 [1995]; Nicastro v Park, 113 AD2d 129, 134[1985]). Whether a jury verdict should be set aside as contrary to the weight of the evidence doesnot involve a question of law, but rather requires a discretionary balancing of many factors(see Cohen v Hallmark Cards, 45 NY2d 493 [1978]; Nicastro v Park, 113 AD2d129 [1985]). In making this determination, the Court must proceed with considerable caution,"for in the absence of indications that substantial justice has not been done, a successful litigantis entitled to the benefits of a favorable jury verdict" (Nicastro v Park, 113 AD2d at 133).Generally, "[f]act finding is the province of the jury," whose ability to see and hear the witnessesshould be accorded deference (id. at 133-134).
The Court of Appeals determined that this Court erred in setting aside, as a matter of law, theverdict in favor of the plaintiff because a valid line of reasoning existed based on the recordevidence to support that verdict (seeAcosta v City of New York, 15 NY3d 881 [2010]). However, based on a discretionarybalancing of relevant factors (see Cohen v Hallmark Cards, 45 NY2d at 499), we findthat the verdict in the plaintiff's favor was contrary to the weight of the evidence and must be setaside. The evidence so preponderated in favor of the defendants that the jury verdict in favor ofthe plaintiff could not have been reached based on any fair interpretation of the credible evidence(see Carrara v Kelly, 74 AD3d719, 721 [2010]; Nicastro v Park, 113 AD2d at 137-138; cf. McCusker vHuben, 253 AD2d 542 [1998]; Moffatt v Moffatt, 86 AD2d 864 [1982], affd62 NY2d 875 [1984]). Accordingly, we reverse the judgment, grant that branch of the defendants'motion which was pursuant to CPLR 4404 (a) to set [*3]aside theverdict as contrary to the weight of the evidence, and remit the matter to the Supreme Court,Kings County, for a new trial on the issue of liability with respect to so much of the complaint assought to recover damages for battery stemming from the incident in which the plaintiff wasallegedly pushed from the garage roof.
In addition, as the defendants contend, under the circumstances herein, the jury's award ofdamages for future pain and suffering, as reduced by the Supreme Court, deviated materiallyfrom what would be reasonable compensation, to the extent indicated (see CPLR 5501[c]; Alvarado v City of New York, 287 AD2d 296 [2001]; Lemberger v City of NewYork, 211 AD2d 622, 623 [1995]; see also Ferrantello v St. Charles Hosp. &Rehabilitation Ctr., 275 AD2d 387 [2000]). Accordingly, in the event that liability is foundafter a retrial, we direct a new trial on the issue of damages for future pain and suffering, unlessthe plaintiff stipulates to reduce the verdict as set forth herein. Rivera, J.P., Leventhal, Belen andSgroi, JJ., concur. [Prior Case History: 21 Misc 3d 1147(A), 2008 NY Slip Op52527(U).]