This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 163
Stacy S. Killon,
            Respondent,
        v.
Robert A. Parrotta,
            Appellant.




          Gregory V. Canale, for appellant.
          Joseph R. Brennan, for respondent.




ABDUS-SALAAM, J.:
          The issue presented is whether the Appellate Division
applied the correct test in setting aside the jury verdict and
concluding as a matter of law that defendant was the initial
aggressor in the physical altercation between the parties,
rendering a justification defense unavailable to defendant during
retrial of the case.   We hold that the Appellate Division did not
apply the "utterly irrational" test required to make that

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determination as a matter of law.    Applying that test to the
trial evidence and in consideration of the jury instruction
given, we hold that it was not utterly irrational for the jury to
find that defendant was not the initial aggressor and that he
acted in self-defense.    We therefore reverse and remit to Supreme
Court for retrial.


                                I.
          This personal injury action resulted from a physical
altercation between plaintiff, Stacey Killon and defendant,
Robert Parrotta.    During trial the evidence revealed that
plaintiff, a longtime friend of defendant's then-wife, made a
drunken threatening phone call to defendant concerning
defendant's treatment of his wife.      In response, defendant drove
approximately 20 miles in the middle of the night to plaintiff's
residence in Olmstedville.    Defendant's stated intention was to
end their dispute face-to-face, or to engage in a physical
altercation.   During defendant's drive, he placed two phone calls
to his then-wife.    Although defendant testified during trial that
she did not answer either of his calls, his then-wife testified
that she had answered and defendant told her he was going to
Olmstedville to beat up plaintiff and to tell plaintiff that he
was coming for that purpose.
          When defendant arrived at plaintiff's home, he shined
his truck lights onto plaintiff's property.     Defendant and


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plaintiff, however, disagree on what occurred thereafter.
Defendant claims that after plaintiff saw him, plaintiff exited
his home with a maul hammer handle in hand.    Defendant testified
that he only wanted to talk to plaintiff, but after seeing
plaintiff with the maul handle, he retrieved a bat out of his
truck to defend himself.    According to defendant, plaintiff then
encouraged his dog to attack defendant.    Defendant testified that
plaintiff, still standing on his porch, swung the maul handle at
him, grazing the back of defendant's head.    Defendant, claiming
he could not retreat because he had bad knees, swung his bat at
plaintiff.    Although defendant does not recall the bat making
contact with plaintiff, plaintiff suffered extensive damage to
his jaw as a result.    Defendant fled the scene following the
incident.    In plaintiff's version of events, when defendant
arrived at his home, he repeatedly told defendant to leave.      He
stated that as he stepped off his front porch he threw the maul
handle to the ground, not at defendant.    Defendant then swung his
bat at plaintiff, causing plaintiff's injuries.    Additionally, a
witness for plaintiff who was present during the incident
testified that when defendant arrived, he came out of his truck
with the bat.
            Supreme Court provided the following jury instruction:
            "defendant claims he was acting in
            self-defense and therefore is not liable for
            damages to the plaintiff. The defendant has
            the burden of establishing self-defense by a
            fair preponderance of the credible evidence,
            as I have defined that term for you.

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                    In order to establish self-defense,
          the defendant must establish that he
          reasonably believed the plaintiff was
          attacking or about to attack him and that the
          force that the defendant used to prevent
          injury to himself was reasonable under the
          circumstances. . . . In order for the
          defendant to be justified in using physical
          force, you must find the following factors:
                    First. Whether the defendant was
          the initial aggressor. Initial aggressor
          means the person who first attacks or
          threatens to attack . . . [t]he actual
          striking of the first blow or inflicting the
          first wound is not in itself determinative of
          the question of who was the initial
          aggressor. . . . A person who reasonably
          believes that another person is about to use
          physical force upon him need not wait until
          he's struck or wounded. He may in such
          circumstances use physical force defensively,
          so long as it was reasonable for him to
          believe that the other person was using or
          about to use physical force upon him. He is
          then not considered to be the initial
          aggressor, even though he strikes the first
          blow or inflicts the first wound.
                     Verbal quarrels, the use of abusive
          language, the calling of names or verbal
          threats do not justify the use of any
          physical force. You may not consider any of
          these in determining who was the initial
          aggressor.
                    If you are satisfied that the
          defendant was the initial aggressor, then you
          must find he was not acting in self-defense.
          On the other hand, if the defendant was not
          the initial aggressor, you must continue
          . . . to the remaining factors"
          The jury reached a unanimous verdict that defendant
battered plaintiff by striking him with a bat, but also found
that defendant acted in self-defense.   Plaintiff moved for an
order pursuant to CPLR 4404 (a) to set aside the verdict as a

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matter of law and direct judgment in his favor or, alternatively,
set aside the verdict as contrary to the weight of the credible
evidence and grant him a new trial.    Supreme Court denied
plaintiff's motion, holding that based on all the facts
presented, the jury could have concluded that defendant's actions
were in self-defense, and judgment was entered in defendant's
favor.
          On appeal, the Appellate Division reversed the Supreme
Court order and judgment and ordered a new trial (98 AD3d 828 [3d
Dept 2012][hereinafter the "2012 Appellate Division order"]).
The court concluded that "no fair interpretation of the evidence"
supported "the verdict finding that defendant acted in
self-defense" inasmuch as it was predicated upon "a conclusion
that defendant was not the initial aggressor in the encounter"
(id. at 829).   The court held that
          "[d]espite plaintiff's prior threatening
          phone calls and the evidence that plaintiff
          was the first of the two to swing his club,
          there is no dispute that defendant drove to
          plaintiff's home and then advanced on
          plaintiff's front porch with a bat in his
          hand while demanding a fist fight. Given
          these circumstances, the jury's conclusion
          that defendant was not the first to threaten
          the immediate use of physical force is
          unreachable on any fair interpretation of the
          evidence"
(id. at 830).   Two Justices dissented and voted to affirm,
contending that "there [wa]s a fair interpretation of the
evidence that support[ed] the conclusion that defendant was not
the initial aggressor and, therefore, the jury's verdict should

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not be disturbed" (id. at 830).   The dissent noted that "the fact
that defendant went to plaintiff's home, approached the porch
holding a bat and invited plaintiff to fist fight with him d[id]
not require a finding that defendant was the initial aggressor"
(id. at 831).
          During the retrial ordered by the Appellate Division
majority, Supreme Court indicated that it was constrained by the
holding in the 2012 Appellate Division order that defendant was
the initial aggressor, as a matter of law, and denied defendant's
request to charge the jury on self-defense.   The jury found that
defendant had committed a battery upon plaintiff and that
plaintiff did not provoke the battery.   The jury also awarded
plaintiff $200,000 in damages for medical costs, $0 for past pain
and suffering, and $25,000 for future pain and suffering.    As
relevant here, on appeal from the retrial, the Appellate Division
"reject[ed] defendant's claim that Supreme Court erred because it
did not issue a justification charge to the jury" because that
"defense is not available to the initial aggressor, and defendant
concedes that, pursuant to this Court's prior decision, he was
the 'initial aggressor'" (125 AD3d 1220 [3d Dept 2015]).1
          Defendant's appeal to this Court from the 2015 order


     1
        The Appellate Division also held that "the jury's failure
to award damages for plaintiff's past pain and suffering deviated
materially from reasonable compensation," requiring a retrial
unless the parties could stipulate to an increase in the awards
for past and future pain and suffering (125 AD3d at 1223).
Thereafter, the parties did so stipulate.

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brings up for review the prior non-final 2012 order, which
concluded as a matter of law that defendant was the initial
aggressor to whom the defense of justification is not available
(see CPLR 5601 [a]; 98 AD3d at 830; 125 AD3d at 1221).


                                II.
          The question before us is whether the Appellate
Division's legal conclusion in its 2012 order was reached under
the proper test.   When the Appellate Division reviews a jury
determination, it may either examine the facts to determine
whether the weight of the evidence comports with the verdict, or
the court may determine that the evidence presented was
insufficient as a matter of law, rendering the verdict utterly
irrational (see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]).
Defendant argues that the Appellate Division erred by setting
aside the jury verdict in his favor and improperly determining as
a matter of law that a justification defense was unavailable to
him, without finding the verdict to be utterly irrational.     We
agree.
          The Appellate Division may not disregard a jury verdict
as against the weight of the evidence unless "the evidence so
preponderate[d] in favor of the [moving party] that it could not
have been reached on any fair interpretation of the evidence"
(Lolik v Big Supermarkets, 86 NY2d 744, 746 [1995]).   Where the
Appellate Division determines that a verdict is against the


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weight of the evidence, the remedy is to remit for a new trial.
By contrast, where the Appellate Division intends to hold that a
jury verdict is insufficient as a matter of law, it must first
determine that the verdict is "utterly irrational" (Campbell v
City of Elmira, 84 NY2d 505, 510 [1998]).   To conclude that a
verdict is utterly irrational, requiring vacatur of the verdict,
the court must determine that "there is simply no valid line of
reasoning and permissible inference which could possibly lead [a]
rational [person] to the conclusion reached by the jury on the
basis of the evidence presented at trial" (id.).   "When it can be
said that 'it would not be utterly irrational for a jury to reach
the result it . . . determined . . . the court may not conclude
that the verdict is as a matter of law not supported by the
evidence'" (id., quoting Cohen, 45 NY2d at 499).
          In its 2012 order, although the Appellate Division
examined the facts and determined that "the jury's conclusion
that defendant was not the first to threaten the immediate use of
physical force [wa]s unreachable on any fair interpretation of
the evidence" (98 AD3d 830) -- ostensibly a weight of the
evidence review -- the effect of that order was to hold as a
matter of law that defendant was the initial aggressor to whom
the defense of justification was not available -- a determination
that could only be reached by concluding that the verdict was
"utterly irrational."   Yet, the Appellate Division did not use
the utterly irrational test.   The Appellate Division's error in


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not applying the proper test resulted in defendant being
improperly precluded from raising a justification defense on the
retrial.   Defendant should have been afforded a new trial on all
the issues in the case, including consideration of his
justification defense by the jury.      Despite this error, reversal
is only required if we find that the jury verdict was not utterly
irrational.


                                III.
           Because determining whether a jury verdict was utterly
irrational involves a pure question of law, this Court may look
at the trial evidence and make that determination (see e.g.
Cohen, 45 NY2d 493).   We must consider the jury charge as to
initial aggressor and self-defense that was given during the
first trial because the instruction, submitted without objection,
is the law of the case (see Passantino v Consolidated Edison Co.
of New York, Inc., 54 NY2d 840, 842 [1981]).     Based on that
instruction, set forth above, we hold that the jury's
determination that defendant acted in self-defense was not
utterly irrational.
           The evidence presented during the first trial, as
summarized in this opinion, revealed conflicting versions of
events.    Although the entire encounter occurred because defendant
drove to the plaintiff's home, it was not utterly irrational for
the jury, under the charge delivered to it, to determine that


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defendant was not the initial aggressor based on the conflicting
versions.     The jury could have believed that plaintiff brought
out a weapon first, told his dog to attack defendant, and swung
his weapon first.      Because the jury verdict was not utterly
irrational, we reverse and remit to Supreme Court for a new
trial.2
              Accordingly, the order appealed from and the August 30,
2012 Appellate Division order insofar as brought up for review
should be reversed, with costs, and the matter remitted to
Supreme Court for a new trial in accordance with the opinion
herein.
*   *     *    *   *    *   *   *     *      *   *   *   *   *   *     *   *
Order appealed from and the August 30, 2012 Appellate Division
order insofar as brought up for review reversed, with costs, and
matter remitted to Supreme Court, Warren County, for a new trial
in accordance with the opinion herein. Opinion by Judge
Abdus-Salaam. Chief Judge DiFiore and Judges Pigott, Rivera,
Fahey and Garcia concur. Judge Stein took no part.

Decided October 27, 2016




     2
        While we would normally remit to the Appellate Division
to consider whether the jury's verdict on self-defense was
against the weight of the evidence, because under these unusual
circumstances where the Appellate Division already performed that
analysis and decided the case should be retried, remittal
directly to Supreme Court for a new trial is most appropriate.

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