Launders v. Steinberg , 828 N.Y.S.2d 36 ( 2007 )


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  • Andrias, J. (concurring in part and dissenting in part).

    While we are all in agreement that defendant-appellant perpetrated a heinous crime when he killed six-year-old Lisa, Justice McGuire is correct in finding, with regard to the inquest court’s award of damages for pain and suffering, to the extent alleged in the fifth and sixth causes of action, resulting from injuries Lisa endured as a battered child, that plaintiff-respondent Michele Launders in her capacity as administratrix of Lisa’s estate, has not met her burden of showing that appellant’s liability for uncharged prior acts of abuse was “necessarily determined” in the earlier criminal prosecution against him.

    The most serious crime for which appellant was charged was murder in the second degree, arising out of his striking of Lisa on the evening of November 1, 1987. The prosecution’s theory for the lesser charge of manslaughter in the first degree was that appellant “with intent to cause serious physical injury to Lisa, injured her and then failed to obtain medical assistance for her, causing her death” (People v Steinberg, 170 AD2d 50, 62-63 [1991], affd 79 NY2d 673 [1992]). His conviction for that crime “necessarily determined” for collateral estoppel purposes that, on the night in question, appellant violently struck the child several times in the head and essentially left her to die. However, the same cannot be said for the earlier instances of abuse and neglect allowed by the trial court as background material and to counter any potential defense that appellant’s act was an isolated incident or mere accident. Absent a conviction for such alleged abuse and neglect, appellant had no basis to ap*71peal the use of such evidence other than to question the propriety of its introduction at trial with regard to his manslaughter conviction. Indeed, as a criminal defendant in that earlier proceeding he was under no obligation to refute or contradict such testimony or, constitutionally, to mount any defense.

    Accordingly, the grant of summary judgment on the fifth and sixth causes of action insofar as it imposed liability on defendant for the alleged injuries endured by Lisa as a battered child and the award of damages for her conscious pain and suffering resulting from such injuries should be reversed and vacated and the matter remanded for trial of both the issues of liability and damages.

    Moreover, although the noted forensic pathologist Michael Baden testified at the inquest on damages that Lisa would not necessarily have lost consciousness immediately after appellant struck her in the head shortly after 6:00 p.m. on November 1, 1987 and was of the opinion that Lisa “lost consciousness 8 to 10 hours later,” the sole basis for such opinion and the inquest court’s finding that Lisa vomited throughout the night for a period of 8 to 10 hours before she became comatose between the hours of 4:00 and 6:00 a.m. were statements made by appellant and Hedda Nussbaum when Lisa was taken by ambulance to the pediatric emergency room at St. Vincent’s Hospital. Subsequently, however, at the criminal trial, which is the only basis for the collateral estoppel sought to be applied here, Ms. Nussbaum, appearing as a witness for the prosecution, testified that those and similar statements made to the police were a “cover story” (170 AD2d at 60). Ms. Nussbaum, the sole eyewitness to the events of that evening, also testified at the criminal trial that Lisa was unconscious when appellant carried her limp body into the bathroom moments after 6:00 p.m. and laid her on the floor. Thus, although Dr. Baden’s opinion was unrefuted at the inquest on damages, the underlying basis for his opinion is certainly questionable.

    Where it is contended on appeal that an award of money damages is excessive, CPLR. 5501 (c) requires this Court to determine whether such award “deviates materially from what would be reasonable compensation.” Ordinarily, when dealing with an excessive jury verdict, we direct a new trial unless the plaintiff stipulates to accept a lower amount. Where, however, as here, an excessive verdict is rendered by the court after a bench trial, such procedure is not required and this Court may *72render the judgment it finds warranted by the facts (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]). Thus, notwithstanding the inherent difficulty and subjectivity involved, once liability has been determined we, in our oversight role as gatekeepers, must dispassionately review the damages awarded and, in the case of an excessive verdict, reduce such award to an amount we deem to be reasonable.

    Although at this point nothing, let alone a sum of money, can bring Lisa back or relieve her suffering, we nevertheless must determine what would be just compensation for her injuries. Neither plaintiff nor the other members of this Court point to a truly comparable award in this or any other state to guide and enlighten us, and reliance upon case precedent alone is virtually impossible, given the different injuries and circumstances in each case (see Po Yee So v Wing Tat Realty, 259 AD2d 373, 374 [1999]). Nevertheless, although no one can measure another person’s pain and we can only imagine the extent of Lisa’s suffering, assuming that Lisa was conscious from shortly after 6:00 p.m. until she was brought to the hospital the next morning and taking into consideration the “tormented” hours before her death, the award of $5 million for past pain and suffering deviates materially from what would be reasonable compensation under these circumstances and should be reduced to $2 million, which amount should be subject to the setoff previously ordered by the inquest court of the amount settled for with the municipal defendants.

    Finally, given the foregoing award of compensatory damages, appellant’s total lack of remorse, and the heinous nature of his assault and battery and negligence, which are the sole remaining causes of action under consideration on this appeal, an additional award of $2 million in punitive damages is appropriate and the verdict should be reduced accordingly.

Document Info

Citation Numbers: 39 A.D.3d 57, 828 N.Y.S.2d 36

Judges: Andrias, Catterson, McGuire

Filed Date: 1/16/2007

Precedential Status: Precedential

Modified Date: 10/19/2024