We also recognize that "culpable conduct" as described in CPLR 1411 includes "intentional misconduct" (Arbegast v Board of Educ. of S. New Berlin Cent. School, 65 NY2d 161, 167 [1985] [internal quotation marks and citation omitted]). In a civil action for assault, however, "a defendant may show, in mitigation of damages, that [the] plaintiff's words or actions immediately preceding the assault provoked defendant's assault" (Pirodsky v Pirodsky, 179 AD2d 1066, 1066 [1992]; see Totaro v Scarlatos, 63 AD3d 1144, 1145 [2009]; 2A NY PJI2d 3:3 at 18). Here, in lieu of a comparative fault charge under CPLR 1411, the court instructed the jury that it could consider any contemporaneous, provocative conduct on plaintiff's part in mitigation of plaintiff's damages award.
Further, once the jury was deadlocked with respect to the key question of self-defense submitted to it at the trial on the issue of liability, there should have been a new trial on the issue of liability with respect to the defendant ( see CPLR 4113 [b]; State of New York v Exxon Corp., 7 AD3d 926; Coclin v Lane Press, 228 AD2d 359; Slusarczyk v Slusarczyk, 41 AD2d 593; Tannenbaum v Hoar, 26 AD2d 980). Further-more, at the trial on the issue of damages, the Supreme Court erred in precluding evidence of provocation, as the jury could have considered such evidence in the mitigation of compensatory damages ( see Kiff v Youmans, 86 NY 324, 330 [1881]; Voltz v Blackmar, 64 NY 440, 444-445 [1876]; Pirodsky v Pirodsky, 179 AD2d 1066; Levine v Abergel, 127 AD2d 822, 825; 2 NY PJI 2d 3:3).
Having pleaded guilty to assault in the third degree in an earlier criminal action stemming from the same incident, the respondent, Edmund Spivak, is precluded from litigating the issue of liability in this action alleging that he committed assault and battery against the plaintiff George DeSantis (see, Merchants Mut. Ins. Co. v. Arzillo, 98 A.D.2d 495). With regard to the respondent's affirmative defense concerning the culpable conduct of the plaintiff George DeSantis, the relative degree of culpability between those parties should be resolved at a trial on the issue of damages (see, Pirodsky v. Pirodsky, 179 A.D.2d 1066).
Plaintiff essentially sought to preclude diLorenzo from relitigating the issue that his conduct caused her "physical injury" (see, Penal Law § 10.00). Based upon the nature of diLorenzo's plea bargain, we conclude that he did not have a full and fair opportunity to litigate the issue in the criminal proceedings (see, Sullivan v Breese, 160 A.D.2d 997, 999; cf., Pirodsky v Pirodsky, 179 A.D.2d 1066; Kramer v Griffin, 156 A.D.2d 973). The format of the verdict sheet provided by the court instructed the jury to consider first diLorenzo's liability.
Memorandum: Supreme Court did not abuse its discretion in denying defendants' cross motion to consolidate. A motion to consolidate is directed to the sound discretion of the court, and the court is afforded wide latitude in the exercise thereof (see, Pirodsky v. Pirodsky, 179 A.D.2d 1066; Inspiration Enters. v. Inland Credit Corp., 54 A.D.2d 839, 840, appeal dismissed 40 N.Y.2d 1014). Although the two actions sought to be consolidated here stem from the same construction project, consolidation or joint trial would be inappropriate because they present dissimilar claims involving different parties (see, Robertson Co. v. New York Convention Ctr. Dev. Corp., 160 A.D.2d 524, 525; Brown v. Brooklyn Union Gas Co., 137 A.D.2d 479, 480). Action No. 1 is a claim by one of the subcontractors, J.T. Mauro Company, Inc. (Mauro), against Genesee Valley Group Health Association (GVGHA), the project lessee.
Where punitive damages are sought, all circumstances immediately connected with the transaction tending to exhibit or explain a defendant's motivation for the conduct in question are admissible in evidence (seeMoran v. International Playtex , 103 AD2d 375 [2d Dept 1984] ). In a civil action for assault, a defendant may show, in mitigation of damages, that plaintiff's words or actions immediately preceding the assault provoked defendant's assault (seeKiff v. Youmans , 86 NY 324 [1881] ; Voltz v. Blackmar , 64 NY 440 [1876] ; Pirodsky v. Pirodsky , 179 AD2d 1066 [4th Dept 1992] ). In its order of April 12, 2017 the court granted plaintiff summary judgment on the issue of liability and directed the parties to complete discovery solely on the issue of plaintiff's damages.
To be clear, no provocative act, conduct, insult or word, if unaccompanied by an overt act of hostility, will justify an assault (Matter of Levy v. World-Telegram , 255 A.D. 237, 238—239, 7 N.Y.S.2d 546 [3d Dept. 1938] ). However, the provocation mitigates the degree of culpability (see e.g., Pirodsky v. Pirodsky, 179 A.D.2d 1066, 579 N.Y.S.2d 524, 525 [4th Dept. 1992] ; People v. Shelby, 57 Misc. 3d 561, 61 N.Y.S.3d 831 [Sup. Ct, Richmond County 2017].Moreover, Doe exercised self-restraint until she was triggered by a particular word that invoked the horrible nightmare of her rape and this trigger occurred at a moment that she was transitioning medication which made her vulnerable to rage.
To be clear, no provocative act, conduct, insult or word, if unaccompanied by an overt act of hostility, will justify an assault (Matter of Levy v. World-Telegram, 255 A.D. 237, 238—239 [3d Dept 1938]). However, the provocation mitigates the degree of culpability (see e.g., Pirodsky v. Pirodsky, 579 N.Y.S.2d 524, 525 [4th Dept 1992]; People v. Shelby, 57 Misc 3d 561 [Sup Ct, Richmond County 2017]. Moreover, Doe exercised self-restraint until she was triggered by a particular word that invoked the horrible nightmare of her rape and this trigger occurred at a moment that she was transitioning medication which made her vulnerable to rage.
In a civil action for assault, defendant may show, in mitigation of damages, that plaintiff's words or actions immediately preceding the assault provoked the assault. Pirodsky v Pirodsky, 179 AD2d 1066, 579 N.Y.S.2d 524 (4th Dep't, 1992). Based upon the testimony of each party, and after observing their respective demeanor in Court, the Court finds the testimony of both parties incredible, albeit Defendant's testimony was more incredible.
His defense of self defense thus fails. Once a plaintiff establishes an assault and battery, a defendant's claim that the plaintiff's words or actions provoked the attack goes to the mitigation of damages ( Pirodsky v Pirodsky, 179 AD2d 1066, 1067 [4th Dept 1992]). The extent to which each party was responsible for the attack is determined at the same stage as the issue of damages ( id.; DeSantis v Manhasset Union Free School Dist., 274 AD2d 373 [2d Dept 2000]).