
    [810 NYS2d 775]
    Fausto Herrera, Respondent, v Aaron Braunstein, Appellant.
    Supreme Court, Appellate Term, First Department,
    January 5, 2006
    
      APPEARANCES OF COUNSEL
    
      Gerald M. Hertz & Associates, New York City, for appellant. William J. Rita, New York City, for respondent.
   OPINION OF THE COURT

Per Curiam.

Amended judgment entered October 5, 2003 modified by vacating the damages awards and directing a new trial on the issue of damages only; as modified, amended judgment affirmed, without costs. Appeal from judgment entered on or about March 13, 2003 dismissed, without costs, as superseded by defendant’s appeal from the amended judgment.

This is an action for personal injuries caused by an assault. The plaintiff and the defendant were the only witnesses who testified at the trial. The jury returned a verdict for $150,000 for past emotional distress, $150,000 for future emotional distress, $100,000 for past pain and suffering and $100,000 for future pain and suffering, totaling $500,000. The jury also awarded $100,000 for punitive damages. The trial court in reducing the compensatory damages award to $100,000 accurately stated that no medical testimony was presented to establish any claimed injuries nor did it allocate the $100,000 between the physical and emotional injury.

Plaintiff claimed an aggravation of a preexisting hernia condition. “ [Aggravation of a pre-existing condition is an element of special damages which must be specially pleaded and proven before recovery therefor can be allowed” (Behan v Data Probe Intl., 213 AD2d 439, 440 [1995]). Despite his failure to allege such damages in the complaint or attempt to offer any medical evidence supporting a recovery of such damages at trial, plaintiff was awarded an aggregate recovery of $200,000 for past and future pain and suffering where this was the only physical injury claimed. Nor was there medical evidence of emotional distress to support any award. In this posture, and given the trial court’s acknowledgment in its posttrial decision that the jury charge as given provided “insufficient guidance on how to determine the measure of compensatory damage,” we find that the jury’s compensatory damages awards totaling $500,000 were so grossly excessive that a mere reduction of the awards would not be an adequate remedy (see Minichiello v Supper Club, 296 AD2d 350 [2002]). The irrational compensatory award of a half million dollars in this civil assault and battery case where the plaintiff presented no medical evidence, expert or otherwise, is neither sustainable nor capable of meaningful reduction, and this notwithstanding the absence of timely trial objections on key issues by defense counsel. Nor is anything approaching a six-figure recovery for “humiliation” justified on this record, which, beyond plaintiff’s unamplified testimony that he “felt a lot of fear” after the incident, contained no competent evidence attesting to the severity and consequences of any mental anguish that plaintiff may have experienced (see Matter of City of New York v New York State Div. of Human Rights, 250 AD2d 273, 278 [1998], mod on other grounds 93 NY2d 768 [1999]; Matter of Electchester Hous. Project v Rosa, 225 AD2d 772, 774 [1996]; cf. Bert v Port Auth. of N.Y. & N.J., 166 AD2d 351, 352 [1990] [in case involving “racial overtones” where police assaulted plaintiff, detained him for 3½ hours, and called him a pimp, court sustained $100,000 compensatory award for “the abject humiliation to which [plaintiff] was subjected in the presence of young and impressionable members of his family and the strain the incident has imposed upon his relationship with his stepdaughter”]). The dissent states that humiliation is the most significant aspect of plaintiffs claim. Humiliation was not alleged or charged nor is it an element of damages in an assault case, although it may be considered in an unlawful detention case such as Bert v Port Auth. of N.Y. & N.J. (166 AD2d 351 [1990], supra), cited by the dissent (see, PJI2d 3:5 [2005]). Furthermore the plaintiff does not claim that he left his employment because of his claimed injury nor did the jury award any loss of earnings or medical expenses since none were even offered in evidence.

And while punitive damages may be awarded for assaultive conduct in an appropriate case (see e.g. Falcaro v Kessman, 215 AD2d 432 [1995]), it appears that the jury’s $100,000 punitive damages award here may have been the result of passion, if not confusion. Furthermore, in view of what we see as a case justifying a minimal award, if any, we cannot at this stage determine if the compensatory to punitive damages ratio implicates State Farm Mut. Automobile Ins. Co. v Campbell (538 US 408 [2003]). While we agree that the defendant’s conduct was reprehensible, nevertheless the jury’s awards “are so [excessive] and skewed as to indicate to us that the jury lacked any comprehension as to its function in assessing damages and the standards it was to use in measuring injury” (Russo v Port Auth. of N.Y. & N.J., 98 AD2d 618, 619 [1983]), a new trial on all items of damages is warranted.

We have considered defendant’s remaining arguments and find them lacking in substantial merit,

Suarez, P.J.

(dissenting). I respectfully dissent. The issue on this appeal is whether the evidence was sufficient to sustain the jury award of $100,000 for punitive damages and a reduced compensatory damages award of $100,000. I find that it was and would affirm the amended judgment.

The evidence at the jury trial established that Fausto Herrera, an “elderly gentleman” of approximately 60 years of age and the porter/doorman of a luxury rental on West End Avenue, was subjected to a vicious assault and battery by the defendant, who vituperatively cursed at, menacingly threatened and brutally pushed him from behind into the corner of a desk, causing him pain, injury and fear for his life, in the presence of various of the building’s residents. Two and one-half hours later, the defendant assaulted Herrera by pointing a gun at and telling him he would not see another Christmas, causing him to urinate on himself in fear. Herrera missed 10 days of work and resigned from his job because of these incidents; his hernia condition was exacerbated, requiring surgical repair; he suffers from severe emotional injuries which naturally resulted from defendant’s barbarous conduct; and he has trouble sleeping.

Defendant asserts, and the majority finds, that a new trial is warranted because the jury award was so excessive that a mere reduction, as stipulated to by Herrera, would not be an adequate remedy (majority op at 106). The majority finds that Herrera’s failure to plead and prove “aggravation of a pre-existing condition” precludes his recovery for the hernia operation he underwent after the defendant violently pushed him into the corner of the desk, yet defendant’s failure to raise this issue at trial renders this issue unpreserved for our review. (See CPLR 4017, 5501 [a] [3]; Horton v Smith, 51 NY2d 798, 799 [1980]; Hotaling v CSX Transp., 5 AD3d 964 [3d Dept 2004]; Pilon v Pilon, 278 AD2d 760 [3d Dept 2000]; Holtz v Wildenstein & Co., 261 AD2d 336 [1st Dept 1999].) Defendant asserts on appeal that Herrera failed to allege the hernia condition in a bill of particulars, but defendant failed to demand a bill of particulars, and seemed content to defend the case by his assertion at trial that he neither pushed Herrera nor assaulted him with a gun, defenses which the jury clearly rejected. I find no occasion to review this issue in the interest of justice. (See Pyptiuk v Kramer, 295 AD2d 768 [3d Dept 2002]; cf. Heller v Louis Provenzano, Inc., 257 AD2d 378, 379 [1st Dept 1999].) Particularly is this so since Herrera’s attorney stated in his opening at trial that he intended to prove that the battery aggravated Herrera’s existing hernia condition and defendant made no objection when such testimony was given. (See Matter of Moore v Blank, 8 AD3d 1090 [4th Dept 2004]; Stiglianese v Vallone, 255 AD2d 167 [1st Dept 1998].) If defendant had an objection to the testimony, the time to assert it was when the testimony was presented, so that plaintiff would have had the opportunity to overcome the objection by presentation of further evidence. Perhaps it was the defense attorney’s trial strategy (which in hindsight did not work), but having charted the procedural course, we should not now reverse to Herrera’s prejudice. (See Schein v Chest Serv. Co., 38 AD2d 929 [1st Dept 1972]; Osborne v Schoenborn, 216 AD2d 810, 811 [3d Dept 1995]; Barber v Young, 238 AD2d 822, 824 [3d Dept 1997].)

This case is not at all similar to Minichiello v Supper Club (296 AD2d 350 [1st Dept 2002]), relied upon by the majority, where the trial court entered judgment on a jury verdict of over $20,000,000 and the Appellate Division found that a new trial was mandated because the awards of damages were grossly excessive and were the result of passion and prejudice arising from plaintiffs counsel’s misconduct as well as judicial error, so that a mere reduction of the awards would be an inadequate remedy. The instant case involves a jury award of $600,000, which the trial court properly set aside and directed a new trial unless plaintiff stipulated to a reduction to $200,000; plaintiff so stipulated. There is no assertion herein that plaintiff’s counsel engaged in misconduct which incited the jurors’ passion. (See id., 296 AD2d at 352.) The punitive damages award for the outrageous conduct was entirely appropriate. (See e.g. O’Donnell v K-Mart Corp., 100 AD2d 488, 492 [1984].) The majority’s speculation “that the jury’s $100,000 punitive damages award here may have been the result of passion, if not confusion” (majority op at 107) ignores the likelihood that the amount of the punitive damages award was based upon the nature of defendant’s conduct, which the majority concedes was “reprehensible.” (Id.) Nor, as indicated, is there any demonstrable error committed by the trial court which was preserved for our review.

The majority’s agreement with the trial court’s determination that the jury charge provided “insufficient guidance on how to determine the measure of compensatory damage” (at 106) is similarly unpreserved for appellate review, as the record demonstrates that defendant neither requested a different charge nor took exception to the charge as given. It is well settled that the requirement that an exception to a charge be timely made is not merely a technicality, but is mandatory, to give the trial court and the opponent the opportunity to correct any error in the conduct of the trial. (Barry v Manglass, 55 NY2d 803, 805-806 [1981].) In any event, the trial court’s charge on damages was practically a verbatim recitation of New York Pattern Jury Instructions — Civil (PJI3d 2:280 [2004]), and no fundamental error is demonstrated so as to warrant a new trial on this ground. (See McAteer v Arden Hill Hosp., 170 AD2d 758 [3d Dept 1991].)

Moreover, the physical and emotional injuries sustained by Herrera were sufficient to justify the stipulated reduced compensatory damages of $100,000, even without medical testimony. (See Allinger v City of Utica, 226 AD2d 1118 [4th Dept 1996].) The award of $100,000 in compensatory damages does not deviate materially from reasonable compensation. The defendant’s arguments and the majority’s determination that the awards are “grossly excessive” (majority op at 106) “completely ignore what is manifestly the most significant aspect of plaintiffs damage claims, i.e., the abject humiliation to which he was subjected.” (Bert v Port Auth. of N.Y. & N.J., 166 AD2d 351, 352 [1st Dept 1990].) Contrary to the majority’s assertion, damages for humiliation are recoverable in a case of an assault. (See Young v Village of Potsdam, 297 NY 712 [1947]; 2 NY PJI2d 16 [2006].) Damages for fright, a natural and probable consequence of defendant’s assault upon plaintiff with a gun, and also a substantial portion of plaintiffs damages herein, are also recoverable. (See Beck v Libraro, 220 App Div 547 [2d Dept 1927]; see also Williams v Underhill, 63 App Div 223 [1st Dept 1901]; O’Donnell v K-Mart Corp., 100 AD2d 488, 492 [4th Dept 1984].)

The amended judgment should be affirmed in all respects. McCooe and Gangel-Jacob, JJ., concur; Suarez, EJ, dissents in a separate memorandum. 
      
       Although error in the jury instructions is not urged by defendant as an independent ground for reversal on appeal, we share the trial court’s stated concerns over the (in)sufficiency of the jury instructions. In this connection, we note that the generic charge on compensatory damages comprised only four sentences and provided no case-specific guidance to the jury, while the punitive damages charge, similarly terse, authorized the jury to consider the defendant’s “financial condition,” an issue not addressed by the parties via evidence or argument at any point during the trial proceedings.
     