Acosta v. City of N.Y.

• Decision Date: 03 May 2011
• Citation: 2011 N.Y. Slip Op. 03789,84 A.D.3d 706,921 N.Y.S.2d 644
• Parties: Pedro ACOSTA, respondent,v.CITY OF NEW YORK, et al., appellants.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 706

921 N.Y.S.2d 644

2011 N.Y. Slip Op. 03789

Pedro ACOSTA, respondent,

v.CITY OF NEW YORK, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

May 3, 2011.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Drake A. Colley of counsel), for appellants.Roura & Melamed (Alexander J. Wulwick, New York, N.Y., of counsel), for respondent.REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, ARIEL E. BELEN, and SANDRA L. SGROI, JJ.

In an action to recover damages for personal injuries, the defendants appeal from (1) an order of the Supreme Court, Kings County (Starkey, J.), dated December 18, 2008, which denied their motion pursuant to CPLR 4404(a) to set aside a jury verdict on the issue of liability, with respect to so much of the complaint as sought to recover damages for battery stemming from an incident in which the plaintiff was allegedly pushed from a garage roof, in favor of the plaintiff and against them and for judgment as a matter of law or, alternatively, to set aside the jury verdict as contrary to the weight of the evidence and for a new trial, and granted their separate motion pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages only to the extent of ordering a new trial unless the plaintiff stipulated to reduce the damages award for future pain and suffering to the principal sum of $325,000, and (2) a judgment of the same court dated February 5, 2009, which, upon the order and upon the plaintiff's stipulation, is in favor of the plaintiff 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 granted that branch of the defendants' motion pursuant to CPLR 4404(a) which was to set aside the jury verdict and for judgment as a matter of law ( see Acosta v. City of New York, 72 A.D.3d 624, 898 N.Y.S.2d 601). In a memorandum decision dated October 26, 2010, the Court of Appeals reversed the decision and order of this Court and remitted the matter to this Court to determine “whether the jury's verdict is in accord with the weight of the evidence and, if so, whether the amount of damages awarded by the jury was excessive” ( Acosta v. City of New York, 15 N.Y.3d 881, 882, 912 N.Y.S.2d 563, 938 N.E.2d 997).

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 the facts and in the exercise of discretion, that branch of the defendants' motion which was pursuant to CPLR 4404(a) to set aside the verdict as contrary to the weight of the evidence is granted, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of liability with respect to so much of the complaint as sought to recover damages for battery stemming from an incident in which the plaintiff was allegedly pushed from a garage roof, and, if liability is found, for a new trial on the issue of damages for future pain and suffering unless, within 30 days after service upon the plaintiff of a copy of this decision and order, he shall serve and file in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to further reduce the verdict as to damages for future pain and suffering from the principal sum of $325,000 to the principal sum of $280,000; in the event that the plaintiff so stipulates, then the jury's findings of fact as to damages for future pain and suffering, as so reduced and amended, are affirmed.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and 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 the roof of a garage, and after another officer pushed him against a fence. Following the trial, a jury rendered a verdict in favor of the plaintiff with respect to so much of the complaint as sought to recover damages for battery stemming from the incident in which the plaintiff was allegedly pushed from the garage roof. The jury found for the defendants with respect to so much of the complaint as sought to recover damages for battery based on the incident in which a police officer allegedly pushed the plaintiff against a fence. Thereafter, the defendants moved pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability in favor of the plaintiff and for judgment as a matter of law, or, alternatively, to set aside the jury verdict as contrary to the weight of the evidence and for a new trial. The defendants also moved to set aside the damages award as excessive. The Supreme Court granted the defendants' motion to set aside the verdict on the issue of damages only to the extent of ordering a new trial unless the plaintiff stipulated to reduce the damages award for future pain and suffering to the principal sum of $325,000, and entered judgment in favor of the plaintiff. The defendants appealed, contending, among other things, that the jury verdict as to liability should have been set aside as a matter of law, or as contrary 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...