Glassman v. Feldman
| Decision Date | 24 February 2022 |
| Docket Number | Index 102140/2009 |
| Citation | 2022 NY Slip Op 30582 (U) |
| Parties | DONALD GLASSMAN, Plaintiff, v. ROBERT J. FELDMAN, Defendant. |
| Court | New York Supreme Court |
Unpublished Opinion
The following papers were read on the parties' applications to set aside the jury verdict pursuant to CPLR 4404:
PRESENT: HON. LOUIS L. NOCK, Justice
DECISION + ORDER ON MOTION
LOUIS L. NOCK, J.S.J.
Upon the foregoing documents, the motion of plaintiff Donald Glassman to set aside a portion of the jury verdict is granted in part, and the motion of defendant Robert J Feldman to set aside the jury verdict and vacate the award of punitive damages is denied, in accord with the following memorandum decision. The two motions are consolidated herein for decision.[1]
Defendant Robert J. Feldman ("Defendant") is a criminal defense attorney. This action arises from Defendant's representation of plaintiff Donald Glassman ("Plaintiff) in an October 2007 criminal trial in the Criminal Term of Supreme Court, New York County, on charges of non-forcible rape in the third degree. Plaintiff was represented in the criminal trial by non-party Howard L. Blau, Esq. During the criminal trial, Plaintiff met Defendant and the parties had several discussions regarding Plaintiffs trial. When the jury returned a guilty verdict on the rape charge, Plaintiff called Defendant in a distressed state and expressed dismay that he had been denied the right to testify at the trial. Defendant counseled Plaintiff to request a hearing to set aside the jury verdict pursuant to Criminal Procedure Law ("CPL") § 330. Following his conviction, Plaintiff discharged Mr. Blau and retained Defendant to represent him in connection with the request for a CPL § 330 hearing. In November 2007, Defendant filed a motion under CPL § 330 to set aside the guilty verdict against Plaintiff on the ground that Plaintiff had been denied his constitutional right to testify in his own defense at the criminal trial. In April 2008, Plaintiff was advised that Defendant's knowledge regarding Plaintiffs right to testify on his own behalf, gleaned through the parties' pre-retention discussions during Plaintiffs trial, made Defendant an essential fact witness for the purposes of the CPL § 330 hearing. Plaintiff then discharged Defendant and retained new counsel who ultimately represented him in the hearing. Following the hearing, Criminal Term granted Plaintiffs motion for a new trial and a new trial proceeded in early 2009. On February 11, 2009, Plaintiff was acquitted of all charges following a non-jury trial.
On February 17, 2009, Plaintiff commenced the action captioned Donald Glassman v Robert J. Feldman, Esq. (index No. 102140/2009 [the "First Action"]), to recover damages for breach of contract and malpractice arising from Defendant's representation of Plaintiff in connection with the CPL § 330 motion, and on the ground that Defendant committed malpractice and ethical violations by undertaking representation of Plaintiff with knowledge that Defendant was a material fact witness concerning Plaintiffs knowledge regarding his right to testify in his own defense. The complaint interposed causes of action for breach of contract and legal malpractice and was later amended to add a cause of action for violation of Judiciary Law § 487. During the pendency of the First Action, Plaintiff commenced the action captioned Donald Glassman v Robert J. Feldman, Esq. (index No. 102988/2012 [the "Second Action"]), which interposed causes of action for defamation per se, intentional infliction of emotional distress, negligent infliction of emotional distress, and for injunctive relief in connection with certain InterNet comments regarding Plaintiff that Defendant posted to two websites.
The cases were later consolidated for trial, which proceeded before this court on the causes of action for breach of contract, malpractice, defamation per se, intentional infliction of emotional distress, and violation of Judiciary Law § 487. At trial, the jury answered the questions presented to it on the verdict sheet as follows:
Plaintiff moves pursuant to CPLR 4404 (a) and 5501 (c) to set aside the portion of the verdict that awarded zero damages for past and future pain and suffering and for an additur on the grounds that the award is inconsistent with the determination of liability on the defamation and intentional infliction of emotional distress causes of action; grossly disproportionate to the $250, 000 award for punitive damages; wrong as a matter of law; and constitutes a material deviation from reasonable compensation for the past and future emotional distress suffered by Plaintiff. Plaintiff seeks the application of a 2-to-1 proportion for an award of punitive to compensatory damages and an additur of $60, 000 damages each for Plaintiffs past and future pain and suffering, for a total additur of $ 120, 000.
Defendant opposes Plaintiffs motion and separately moves to set aside the entire jury verdict because it was "illogical, internally repugnant and against the weight of the evidence" (NYSCEF Doc. No. 65 ¶ 2). Defendant argues that the jury's verdict on the legal malpractice claim is not supported by the evidence presented; that the jury award of zero damages for the Judiciary Law § 487, defamation, and intentional infliction of emotional distress claims does not support the award of punitive damages; that Plaintiffs expert, David Horowitz, should not have been permitted to testify at the trial because his testimony did not relate to issues that were outside the scope of a lay person's knowledge and because he lacked the requisite expertise in criminal law; and, finally, that the verdict on the breach of contract claim should be set aside because "Plaintiffs entire case for breach of contract relied on . .. Horowitz' opinion" (NYSCEF Doc. No. 65 ¶ 3).
Under CPLR 4404 (a), after a trial of a cause of action by a jury the court may, upon motion, "set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree after being kept together for as long as is deemed reasonable by the court." New York courts have articulated two distinct standards of review available under CPLR 4404 (a) (see, Killon v Parrotta, 28 N.Y.3d 101, 108 [2016]). Under CPLR 4404 (a) (and Killon) the court may: (1) examine the facts to determine whether the weight of the evidence comports with the verdict; or (2) consider whether the evidence was insufficient as a matter of law, rendering the verdict utterly irrational (Nemeth v Brenntag North America, 183 A.D.3d 211, 216 [1st Dept 2020]). The court "may not disregard a jury verdict as against the weight of the evidence unless 'the evidence so preponderate[] in favor of the [moving party] that [it] could not have been reached on any fair interpretation of the evidence" (id., quoting Killon, 28 N.Y.3d at 107]). "The remedy for a verdict that is against the weight of the evidence is to remit for a new trial" (id.). However, where "the jury verdict is found insufficient as a matter of law, [the court] must determine that the verdict is utterly irrational, meaning there is no valid line of reasoning or permissible inferences from the evidence presented by which a rational person could reach the jury's conclusion" (id.). "The remedy for...
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