Ferguson v. City of N.Y.

• Citation: 73 A.D.3d 649,2010 N.Y. Slip Op. 04504,901 N.Y.S.2d 609
• Parties: Malcolm FERGUSON, etc., et al., Plaintiffs–Appellants–Respondents,v.CITY OF NEW YORK, et al., Defendants–Respondents–Appellants.
• Decision Date: 27 May 2010
• Court: New York Supreme Court Appellate Division

73 A.D.3d 649
901 N.Y.S.2d 609
2010 N.Y. Slip Op. 04504

Malcolm FERGUSON, etc., et al., Plaintiffs–Appellants–Respondents,
v.
CITY OF NEW YORK, et al., Defendants–Respondents–Appellants.

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

May 27, 2010.

[901 N.Y.S.2d 610]

Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), for appellants-respondents.Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondents-appellants.TOM, J.P., MAZZARELLI, ANDRIAS, SAXE, DeGRASSE, JJ.

[73 A.D.3d 649] 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'

[901 N.Y.S.2d 611]

motion as to set aside the jury's verdict on damages and ordered a new trial on punitive damages unless plaintiff stipulated to a reduced award of $36,000 for past loss of financial support and services and $186,000 for future loss of financial support and services, unanimously modified, on the law and the facts, the awards for past economic support, past and future loss of services and punitive damages reinstated in the amounts of $55,920, $261,094 and $2.7 million, respectively, and otherwise affirmed, without costs.

[73 A.D.3d 650] The trial court properly set aside the award of $3 million for conscious pain and suffering because plaintiff failed to show the decedent's consciousness for at least some period of time following the accident ( Cummins v. County of Onondaga, 84 N.Y.2d 322, 618 N.Y.S.2d 615, 642 N.E.2d 1071 [1994] ). Specifically, plaintiff failed to present any evidence that the decedent was conscious or had any cognitive awareness after he was shot in the head, which caused his nearly instantaneous death ( see Martin v. Reedy, 194 A.D.2d 255, 259, 606 N.Y.S.2d 455 [1994] ). A record that shows practically instantaneous death will not support an award for conscious pain and suffering ( see Shatkin v. McDonnell Douglas Corp., 727 F.2d 202 [2d Cir.1984] ). In Merzon v. County of Suffolk, 767 F.Supp. 432, 444 [E.D.N.Y.1991], the court found that the death of a suspect shot and killed by police was almost instantaneous; he never regained consciousness. Under such circumstances, the plaintiff “failed to establish any conscious pain and suffering.” Plaintiff's conjecture, surmise and speculation that the decedent was consciously suffering is not enough to sustain the claim ( Fiederlein v. New York City Health & Hosps....