Colligan v. Fera

• Decision Date: 09 November 1973
• Citation: 349 N.Y.S.2d 306,76 Misc.2d 22
• Parties: Patricia Anne COLLIGAN, Plaintiff, v. William M. FERA, Defendant.
• Court: New York City Court

Page 306

349 N.Y.S.2d 306

76 Misc.2d 22

Patricia Anne COLLIGAN, Plaintiff, v. William M. FERA, Defendant.

Civil Court of the City of New York, Queens County, Trial Term, Part 17.

Nov. 9, 1973.

Patricia Anne Colligan, in pro. per.

Francis B. A'Hearn, Hempstead, for defendant.

DECISION

CHARLES H. COHEN, Judge.

Defendant, at about 1:45 A.M. on April 18, 1973, while driving his automobile upon a public highway, apparently alone, ran into, and damaged, plaintiff's automobile, which was parked along the highway. Defendant conceded liability.

With respect to plaintiff's claim for compensatory damages, both sides produced expert testimony concerning the damage to plaintiff's automobile. After hearing and evaluating the testimony, the Court finds that the difference between the reasonable value of plaintiff's automobile immediately before and immediately after it was damaged was $400, and that the reasonable cost of repairs necessary to restore it to its former condition was an amount in excess of $400. Accordingly, since this item of damage cannot exceed the lesser of those amounts (Gass v. Agate Ice Cream, Inc., 264 N.Y. 414, 190 N.E. 323), plaintiff is awarded compensatory damages of $400.

Plaintiff further seeks to recover punitive damages based upon her claim that defendant was driving his automobile on the public highway while intoxicated. In support of this claim, both plaintiff and a friend, one Catherine Latasso, testified that they observed defendant right after impact and for some time thereafter. They each described what they observed. Latasso further testified that she observed an empty liquor bottle on the back seat of defendant's automobile. Plaintiff testified that the next morning, upon defendant's arraignment following his arrest, he asked her if she was his attorney, despite the fact that she had been with him about 1 1/2 hours the night before. Both plaintiff and Latasso expressed the opinion that defendant was intoxicated when they observed him after the impact. The Court finds that there was a proper foundation for their testimony and that this testimony was competent evidence to show that defendant was intoxicated. Felska v. N.Y. Cent. & H. Riv. R.R. Co., 152 N.Y. 339, 344,46 N.E. 613, 615; Burke v. Tower East Restaurant, 37 A.D.2d 836, 326 N.Y.S.2d 32; Donahue v. Meagley, 220 App.Div. 469, 221 N.Y.S. 707; Molissani v. Commodore Laundry, 152 Misc. 270, 273 N.Y.S. 150. The only other witness who testified on this point was the police officer who arrived at the scene after the impact and arrested defendant for driving while intoxicated. He testified that he reached no conclusion with respect to defendant's intoxication. Unlike plaintiff and Latasso, both of whom the Court finds to be forthright and witnesses of high credibility, the Court finds that this police officer was evasive and unworthy of belief. Upon all of the testimony presented there is sufficient basis for the Court to find that defendant was driving an automobile on the public highway while intoxicated at the time of the impact.

Further, the defendant did not testify at all and no explanation for his failure to testify was given. Thus, while the Court, as the trier of the facts, may not speculate as to what his testimony would have been, '. . . the strongest inferences may be drawn against him which the opposing evidence in the record permits.' Noce v. Kaufman, 2 N.Y.2d 347, 353, 161 N.Y.S.2d 1, 5, 141 N.E.2d 529, 531. The opposing evidence, as appears from the testimony of plaintiff and Latasso--witnesses of high credibility--indicates that defendant was driving while intoxicated. The Court finds that at the time of the impact defendant was driving an automobile on the public highway while intoxicated.

The general rule as to the allowance of punitive damages has been set forth in Walker v. Sheldon, 10 N.Y.2d 401, 404, 223 N.Y.S.2d 488, 490, 179 N.E.2d 497, 498, as follows:

'Punitive or exemplary damages have been allowed in cases where the wrong complained of is morally culpable, or is actuated by evil and reprehensible motives, not only to punish the defendant but to deter him, as well as others who might otherwise be so prompted, from indulging in similar conduct in the future. . . . Moreover, the possibility of an award of such damages may not infrequently induce the victim, otherwise unwilling to proceed because of the attendant trouble and expense, to take action against the wrongdoer. Indeed, such self-interest of the plaintiff has been characterized as 'Perhaps the principal advantage' of sanctioning punitive damages because it 'leads to the actual prosecution of the claim for punitive damages, where the same motive would often lead him to refrain from the trouble incident to appearing against the wrongdoer in criminal proceedings.' (McCormick, Damages (1935), pp. 276--277).'

While, as pointed out in that case (p. 404, 223 N.Y.S.2d p. 490, 179 N.E.2d p. 498), 'The list of actions in which punitive damages have been permitted in this State is long . . .', it is argued on behalf of defendant that there is no authority for the award of such damages in an action for property damage caused by a party who was driving while intoxicated.

In Knibbs v. Wagner, 14 A.D.2d 987, 222 N.Y.S.2d 469, the Court, in denying a motion to strike certain allegations from a complaint, declared that a cause of action for punitive damages was stated by alleging that there was " gross, wilful and wanton negligence" in defendant's driving his automobile after "voluntarily getting drunk." After considering the particular facts in the instant case, including the manner in which the impact occurred and the empty liquor bottle found in defendant's car, the Court finds that defendant was guilty of 'gross, wilful and wanton negligence' in driving his automobile after 'voluntarily getting drunk.' The argument advanced on behalf of defendant that since liability was conceded the Court cannot make a finding of gross negligence is without logic or any...