Opinion
Index No. 158814/2020
08-11-2022
BENEDICTO PEREZ, Plaintiff, v. CURTIS JACKSON, CURTIS JACKSON, also known as TIMCO DAVILLE, and JOHN DOES 1-4, SAID NAMES BEING FICTITIOUS PARTIES INTENDED AS BEING AGENTS OR EMPLOYEES OF CURTIS JACKSON, Defendants.
Unpublished Opinion
PRESENT: HON. JOHN J. KELLEY Justice
DECISION AND ORDER AFTER INQUEST
HON. JOHN J. KELLEY, JUSTICE
I. INTRODUCTION
This is an action to recover damages for assault and battery. The plaintiff alleged that the defendant Curtis Jackson, also known as Timco Daville, intentionally placed him in reasonable fear of imminent physical harm and unwanted touching when Jackson violently struck him. The plaintiff also alleged that Jackson made wrongful and offensive physical bodily contact with him without his consent. The plaintiff contended that Jackson's tortious conduct caused him to sustain serious personal injuries, inter alia, pain, shock, and mental anguish. By order dated April 28, 2021, the court, upon concluding that the plaintiff set forth sufficient proof of the facts underlying his causes of action to recover for assault and battery, granted his motion for leave to enter a default judgment against Jackson on the issue of liability, and set the matter down for an inquest on the issue of damages. The court now finds that the plaintiff is entitled to recover the total sum of $1,325,808.70 from the defendant, plus statutory interest at the rate of 9% per annum, from April 28, 2021.
II. FINDINGS OF FACT
The facts underlying the issue of liability for assault and battery are set forth in this court's April 28, 2021 order. At the January 25, 2022 and February 8, 2022 inquest on the issue of damages, the plaintiff testified on his own behalf and adduced the testimony of Aric Hausknecht, a physician licensed in the State of New York for more than 25 years, who is board certified in neurology and pain management. At the time of the inquest, the plaintiff was 59 years of age, and was employed. The court finds that the credible testimony, video recordings, and documentation submitted to and considered by the court established the following facts.
On the evening of October 20, 2019, the plaintiff took a taxi home after having dinner with a couple of friends. While paying for the taxi and waiting for his credit card to process, the car behind him began honking excessively. Upon exiting the taxi, the next thing he remembered was regaining consciousness, and being at Bellevue Hospital's trauma center. The video evidence presented by the plaintiff showed him exiting a taxi stopped in front of an SUV, crossing the street, turning the corner, and walking toward his home. The video also showed the driver of the SUV exiting the vehicle, running after the plaintiff, punching the plaintiff in the face, and running back to his vehicle before driving away.
After the plaintiff was released from the hospital, he experienced blurry vision, and it took him approximately 10 to 15 minutes before being able to regain full vision. In the period following his discharge from the hospital, when he would lie down the room would spin, and he had recurring nightmares of being assaulted and falling into corners. The plaintiff could only sleep for about four hours at a time and often needed sleep medication.
The plaintiff developed and continues to suffer from ringing in his left ear, he has slight pain in his neck, gets headaches approximately two to three times a week, and takes Tylenol every day for his pain. The plaintiff saw a dentist due to pain that he was experiencing on the right side of his jaw, especially when he tries fully to open his mouth. The plaintiff's primary care physician, Camilo Uy, M.D., concluded that the plaintiff was experiencing insomnia, nightmares, dizzy spells, short term memory loss, and post-concussion syndrome.
Although the plaintiff eventually returned to work, he had trouble multitasking, in that he could no longer perform complex financial transactions and manage large teams of people, as he did prior to the attack. The plaintiff's short-term memory was "shot," and he writes down almost everything in order to remember his tasks. In 2018, he earned $110,498.82 and $35,000.00 from Aliya Financial Technologies and Analytics and Oscar Gruss & Son, respectively. For the four months that he worked at Contract Wrangler, Inc., in 2019, he earned $42,708.00. After the 2019 assault and battery, the plaintiff was let go from his job at Contract Wrangler, Inc., because he was no longer able to set up meetings and perform satisfactorily. He is now only able to perform advisory work, wherein he leverages his relationships and experiences over the last 25 years to advise clients and help set up deals for them, earning approximately $20,000.00 to $30,000.00 doing advisory work in 2020. All of the plaintiff's testimony in this regard is supported by the W2 statements for 2018 and 2019 that he submitted and were admitted into evidence. The plaintiff had no plans of retiring, and wanted to continue working for as long as he could.
Dr. Hausknecht reviewed the plaintiff's ambulance call report, noting that the plaintiff had a two-inch laceration to the back of his head and had a Glasgow Coma score of 10 out of 15 that was indicative of a diminished level of consciousness. When the test was administered for a second time, the plaintiff's Glasgow Coma score was 14 out of 15, which was indicative of a more "normal" score. A computed axial tomography (CAT) scan of the plaintiff's head at 3:00 a.m. on date of the attack showed bleeding within the brain tissue and several subdural hematomas in which blood was collecting on the surface of the brain. The plaintiff also sustained a contrecoup lesion that developed when force was applied to his head, causing his brain to shift in the direction of the force and to push up against the inside of his skull on the side of his head opposite from that to which the impact was applied. A CAT scan performed six hours later revealed essentially the same findings, indicating that the injuries were potentially life threatening, and that they required the plaintiff to be admitted to the intensive care unit
Dr. Hausknecht examined the plaintiff on January 13, 2022. Based on Dr. Hausknecht's testimony, the court finds that the attack on the plaintiff caused the plaintiff to sustain a closed-head trauma with intercranial hemorrhage, a mild traumatic brain injury, post-concussion syndrome, cervical derangement of the neck, right visual processing dysfunction consistent with the point of impact, and post-traumatic stress disorder (PTSD), with anxiety and depression. As of January 13, 2022, the plaintiffs mood was anxious, his short-term memory was impaired, and his speech was pressured and non-fiuent. The plaintiff had difficulty expressing himself and understanding what was said to him, as well as abnormal eye movement, weakness in his right shoulder, and tenderness and limited range of motion in his cervical spine. The court finds that the plaintiff's injuries are permanent in nature, as he is unlikely to make any significant recovery now, that the plaintiff is permanently disabled and cannot function in the field of financing and financial matters in the same capacity as before the attack and resulting injuries.
III. CONCLUSIONS OF LAW
A defaulting defendant admits all traversable allegations in the complaint, including the basic issue of liability (see Amusement Bus. Underwriters v American Intl. Group, 66 N.Y.2d 878, 880 [1985]; Cole-Hatchard v Eggers, 132 A.D.3d718, 720 [2d Dept 2015]; Gonzalez v Wu, 131 A.D.3d 1205, 1206 [2d Dept 2015]). The defaulting defendant is, however, 'entitled to present testimony and evidence and cross-examine the plaintiff's witnesses at the inquest on damages" (Minicozzi v Gerbino, 301 A.D.2d 580, 581 [2d Dept 2003] [internal quotation marks omitted]; see Rudra v Friedman, 123A.D.3d 1104, 1105 [2d Dept 2014]; Toure v Harrison, 6 A.D.3d 270, 272 [1st Dept 2004]). Here, the defendant appeared at the inquest and, while he elected not to present such testimony, he did cross-examine the plaintiff and the plaintiffs expert witness.
This court already has determined that the plaintiff has a cause of action to recover for assault and battery against the defendant, inasmuch as proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact constitutes an assault (see Timothy Mc. v Beacon City Sch. Dist, 127 A.D.3d 826, 829 [2d Dept 2015]; Gabriel v Scheriff, 115 A.D.3d 791, 792 [2d Dept 2014]), and an intentional bodily contact that is offensive in nature constitutes a battery (see Timothy Mc. v Beacon City Sch. Dist., 127 A.D.3d at 829; Cerilli v Kezis, 16 A.D.3d 363, 364 [2d Dept 2005]).
"The 'reasonableness' of compensation must be measured against relevant precedent of comparable cases" (Kayes v Liberati, 104 A.D.3d 739, 741 [2d Dept 2013]; see Urbina v 26 Ct St. Assoc, LLC, 46 A.D.3d 268, 275 ; Reed v City of New York, 304 A.D.2d 1, 7 [1st Dept 2003]; Halsey v New York City Tr. Auth., 114 A.D.3d 726, 727 [2d Dept 2014]). "Although prior damage awards in cases involving similar injuries are not binding upon the courts, they guide and enlighten them with respect to determining whether a verdict in a given case constitutes reasonable compensation" (Miller v Weisel, 15 A.D.3d 458, 459 [2d Dept 2005]; see Garcia v CPS 1 Realty, LP., 164 A.D.3d 656, 659 [2d Dept 2018]; Vainer v DiSaivo, 107 A.D.3d 697, 698-699 [2d Dept 2013]; Reed v City of New York, 304 A.D.2d at 7). What constitutes "reasonable compensation" must be assessed with due regard to the "circumstances presented" (Lunav New York City Tr. Auth., 116 A.D.3d 438, 438 [1st Dept 2014]).
The court concludes that the plaintiff is entitled to an award of $150,000.00 for past pain and suffering, from October 20, 2019 until the date of this decision, a period of approximately two years and 10 months (see Kennedy v City of New York, 2019 NYU LEXIS 4530 [Sup Ct, N.Y. County, Dec. 12, 2019] [award of $300,000.00 for past pain and suffering over a period of five years was reasonable where plaintiff sustained a mild traumatic brain injury, PTSD, as well as multiple bruises and burn marks on her back after use of excessive force by a police officer]; see also Popolizio v County of Schenectady, 62 A.D.3d 1181 [3d Dept 2009] [affirming $350,000 award for past pain and suffering over a period of eight years, where plaintiff's car plunged head-on into a ditch, resulting in a traumatic brain injury as well as diminished cognitive function bordering on mild retardation, loss of enjoyment of life, and depression], Jackson v Mungo One, inc., 6 A.D.3d 236 [1st Dept 2004] [affirming $412,500 past-pain-and-suffering award over a period of at least four years to a seven-year-old who suffered a concussion, post-concussion syndrome, PTSD, and cognitive deficits resulting from being struck by a taxi cab]; Brewster v Prince Apts., Inc., 264 A.D.2d 611 [1st Dept 1999] [reversing judgment and setting aside $70,000 past pain and suffering award over a period of seven years as insufficient where plaintiff was brutally beaten outside her apartment and sustained injuries including severe pain in her neck, left shoulder, and left arm, recurring headaches, facial scarring, and PTSD characterized by nightmares, insomnia, panic, and anxiety]).
The court concludes that the plaintiff is entitled to an award of $485,000.00 for future pain and suffering, from the date of this decision until 19.4 years thereafter (see Jordonne v Ole Bar & Grill, Inc., 2016 U.S. Dist LEXIS 56943 [SD NY, Apr. 26, 2016] [recommending an award of $2,465,000 for future pain and suffering, based on a life expectancy of 49.3 years, for a plaintiff who was assaulted and sustained a brain injury, memory loss, jaw fracture, back pain, and headaches]; Henaghan v Algie, 2013 NY Slip Op 51838[U], 41 Misc.3d 1226[A] [County Ct, Suffolk County 2013] [awarding $525,000 in future pain and suffering, based on a life expectancy of 21 years, to a plaintiff who was struck in the head with a barbell and suffered a permanent, traumatic brain injury and short term memory loss]; Paek v City of New York, 28 A.D.3d 207 [1st Dept 2006] [reducing jury award for future pain and suffering to $3,000,000 over 40 years for a plaintiff who tripped over a metal spike, sustaining a severe brain injury that permanently affected her memory, concentration, and organizational ability]). Here, the plaintiff has a life expectancy of 19.4 years (see 1B NY PJI 3d at Appendix A [2022] [life expectancy tables]). Thus, in taking into account these examples of awards for future pain and suffering, the court concludes that an award of $485,000 for future pain and suffering over 19.4 years is warranted (see Jordonne v Ole Bar & Grill, Inc., 2016 U.S. Dist LEXIS 56943).
The court also concludes that the plaintiff is entitled to an award of $13,308.70 to compensate him for his past, out-of-pocket health-care and therapeutic expenses, in accordance with the testimony and documentation adduced by the plaintiff. Inasmuch as the plaintiff did not adduce evidence of the specific cost of future expenses, if anyt he did not establish a basis for the court to make an award for that item of damages.
The court concludes that the plaintiff is entitled to an award of $225,000.00 for past lost earnings, in accordance with the testimony and documentation adduced by the plaintiff. The plaintiff established, through his W-2 forms, that he earned $142,199.00 in 2018 and $42,708.00 in 2019. The plaintiff testified that he worked for approximately four months in 2019 and was let go from his job due to a decline in his work performance because of the attack. The plaintiff, however, did not adduce evidence as to the nature, extent, compensation, or amount of time that he worked for any years prior to 2018 and, thus, did not establish with reasonable certainty a track record that would permit the court to infer that the plaintiff would have earned as much as he did in 2018 during 2020, 2021, or 2022, or that he would have worked for the entirety of any of those years (see Henriquez-Rodriguez v 160 W. 118th St. Corp., 193 A.D.3d 645, 646 [1st Dept2021]; Papa v City of New York, 194 A.D.2d 527, 531 [2d Dept 1993]). Given the evidence that was adduced, the court concludes that it would be reasonable to infer that, had the plaintiff been able to work, he would have earned an annual salary of $75,000.00 for each of tax years 2020, 2021, and 2022.
The court also concludes that the plaintiff is entitled to an award of $442,500.00 for future lost earnings, in accordance with the testimony and analysis utilized to calculate his past lost earnings. The work life expectancy for a male of his age and educational level is 5,9 years (see 1B NY PJI 3d at Appendix B [2022] [working life expectancy tables]). Thus, 5.9 years, multiplied by an annual income of $75,000.00, equates to a justified future lost earnings award in the sum of $442,500.00.
"Punitive damages generally are reserved for rare cases exhibiting malice, fraud, oppression, insult, wantonness, or other aggravated circumstances which effect a public interest" (DeJesus v. DeJesus, 2017 NYU LEXIS 2998, *8 [Civ Ct, Kings County, Oct. 23, 2017], quoting Laurie Marie M. v Jeffrey T. M., 159 A.D.2d 52, 58 [2d Dept 1990]). Moreover, punitive damages are appropriate where the defendant's conduct was intentional and deliberate, and has the character of outrage frequently associated with crime (see Launders v Steinberg, 39 A.D.3d 57, 68 [1st Dept 2007]), Finally, punitive damages are meant to punish and deter the defendant and others similarly situated from engaging in the same conduct in the future (see Seymour v Hovnanian, 2020 NY Slip Op 33719[U], *13, 2020 NY Misc. LEXIS 9639 [Sup Ct, N.Y. County, Nov. 9, 2020]).
The court concludes that Jackson's behavior was more than sufficient to warrant an award of punitive damages, as claims to recover for battery have long been recognized as supporting a demand and award for punitive damages (see Weiss v Nolan, 2014 NY Slip Op 31304[U], "15-16, 2014 NY Misc. LEXIS 2295, *24 [Sup Ct, N.Y. County, May 19, 2014]; Collins v Wiilcox Inc., 158 Misc.2d 54, 59 [Sup Ct, N.Y. County 1992]). Not only did Jackson attack the plaintiff in an unprovoked fashion, but he also pleaded guilty to assault in the third degree in connection with the vicious attack. Moreover, the court notes that Jackson had an opportunity to testify during the inquest concerning whether an award of punitive damages was warranted, including an opportunity to adduce evidence of mitigating factors, yet he chose not to do so. In light of the amount that the court is awarding in compensatory damages, which is not dischargeable in bankruptcy because it arises from an intentional and wanton act (see 11 USCS § 523), the court finds it appropriate to award punitive damages in the sum of $10,000.00.
"[Prejudgment interest must be calculated from the date that liability is established" (Love v State of New York, 78 N.Y.2d 540, 544 [1991]; see Gyabaah v Rivlab Transp, Corp., 170 A.D.3d 616, 616 [1st Dept 2019]; Bermeo by Bermeo v Atakent, 241 A.D.2d 235, 247 [1st Dept 1998]), which here is April 28, 2021, the date on which the court granted the plaintiff's motion for leave to enter a default judgment against Jackson.
As to "John Does 1-4," there is no showing of any efforts by the plaintiff to identify these fictitious defendants. Since they were never identified, the plaintiff is precluded from relying on CPLR 1024 to maintain this action against those parties (see generally Fountain v Ocean View II Assocs,, LP, 266 A.D.2d 339 [2d Dept 1999]), and the complaint must be dismissed against them.
V. CONCLUSION
In tight of the foregoing, it is, ORDERED that the Clerk of the court shall enter judgment in favor of the plaintiff, Benedicto Perez, and against the defendant Curtis Jackson, also known as Timco Daville, 216 West 149th Street, Apartment 5B, New York, NY 10039, in the sum of $1,325,808.70, plus statutory prejudgment interest at 9% per annum from April 28, 2021; and it is further, ORDERED that the Clerk of the court shall enter judgment dismissing the complaint insofar as asserted against the defendants "John Does 1-4, SAID NAMES BEING FICTITIOUS PARTIES INTENDED AS BEING AGENTS OR EMPLOYERS OF CURTIS JACKSON.”
This constitutes the Decision and Order After Inquest of the court.