Opinion
No. 4753.
June 2, 2011.
Judgment, Supreme Court, Bronx County (Howard H. Sherman, J.), entered June 10, 2010, upon a jury verdict, awarding plaintiff the principal sum of $700,000 as against the City defendants-appellants, and bringing up for review an order, same court and Justice, entered August 10, 2009, which denied defendants' motion for a judgment notwithstanding the verdict or a new trial and granted the alternative relief of setting aside the verdict to the extent of ordering a new trial on damages for past pain and suffering unless plaintiff stipulated to reduce the award from $1.5 million to $700,000, unanimously modified, on the facts, to vacate the award and order a new trial as to damages, unless plaintiff, within 30 days of service of a copy of this order with notice of entry, stipulates to accept a reduced award in the amount of $500,000 and to entry of an amended judgment in accordance therewith, and otherwise affirmed, without costs. Appeal from the aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Michael A. Cardozo, Corporation Counsel, New York (Stephen J. McGrath of counsel), for appellants.
Callan, Koster, Brady Brennan LLP, New York (Michael P. Kandler of counsel), for respondent.
Before: Concur — Gonzalez, P.J., Sweeny, Moskowitz, Renwick and Richter, JJ.
The jury's finding that the off-duty police officer was acting within the scope of his employment when he accidentally shot plaintiff is supported by the evidence ( see Cohen v Hallmark Cards, 45 NY2d 493, 499; Riviello v Waldron, 47 NY2d 297, 302-303; Collins v City of New York, 11 Misc 2d 76, 78-79, affd 8 AD2d 613, affd 7 NY2d 822). This is not a case, such as those on which defendants rely, in which the police officer attacked an individual for personal reasons ( see e.g. Pungello v City of New York, 18 AD3d 216 ; Pekarsky v City of New York, 240 AD2d 645, lv denied 91 NY2d 806).
The trial court properly determined which interrogatories to submit to the jury ( see Simone v McNamara, 59 AD3d 349, 349-350). Apart from plaintiffs testimony that he thought he heard the officer mumble "Russian Roulette," there is no evidence to support the theory that the shooting was intentional. Morever, if the jury had believed that the shooting was intentional, it could have answered the interrogatories accordingly.
Considering the trial in its entirety, we find that defendants received a fair trial. We note that the court sustained many of defense counsel's objections to plaintiffs counsel's comments and struck the comments.
The trial court properly precluded any reference to the officer's conviction of second-degree assault for shooting plaintiff, since the prejudicial effect of such evidence would have had far outweighed its probative value, if any.
We find the damages award excessive to the extent indicated. The evidence demonstrates that plaintiff was shot in the urethra and required surgery. Plaintiff was in the hospital for five days, required various catheter tubes, was unable to normally urinate and was unable to bathe himself. After he was discharged, he required a urine catheter for three or four weeks and was still unable to bathe himself. He was also unable to cook or clean for himself and was in pain. Nevertheless, we find that the past pain-and-suffering award deviates materially from what would be reasonable compensation ( see CPLR 5501 [c]; compare Reed v City of New York, 304 AD2d 1, 7, lv denied 100 NY2d 503). Within two and one-half months of the shooting, plaintiff fully regained normal use of his urinary function. Within a few months later, plaintiff encountered no difficulty performing his work functions and his normal activities of walking, sitting and playing sports.