Plaintiff was injured following an altercation at defendant's adult entertainment business. The jury determined, inter alia, that defendant's employees pushed plaintiff through a window, causing physical injury, but that they were not acting within the scope of their employment when they caused plaintiff's injuries. It was also determined that defendant maliciously prosecuted plaintiff, and that plaintiff sustained $2,500 in compensatory damages and $200,000 in punitive damages as a result.

After trial, defendant moved to set aside the punitive damage award as grossly excessive. The trial court, determining that the award was not so grossly excessive as to be a result of the jury's passion (Nardelli v Stamberg, 44 N.Y.2d 500), declined to exercise its discretion to interfere with the award. We disagree. The jury awarded punitive damages in an amount almost eighty times that awarded for compensatory damages. It further appears that the amount of punitive damages was actuated by the jury's passion as a result of plaintiff's attorney's improper and prejudicial comments throughout the trial. Indeed, plaintiff's counsel incited the jury's passion by attempting to try this case as one against the entire adult entertainment industry, and not merely against defendant.

Although plaintiff claims that defendant's employees were acting within the scope of their employment as a matter of law, he never moved for a directed verdict on this issue and thus conceded that it presented a question for the jury. (Miller v Miller, 68 N.Y.2d 871; Riviello v Waldron, 47 N.Y.2d 297, 303.) The record reveals that the jury's conclusion with regard to "scope of employment" was rational. (See, Quadrozzi v Norcem, Inc., 125 AD 559.)

We have considered the remaining arguments and find them to be without merit.

Concur — Rosenberger, J.P., Wallach, Kupferman, Kassal and Smith, JJ.