        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

134
CA 15-00082
PRESENT: WHALEN, P.J., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.


WILLIAM HOTALING, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

DELONE CARTER, DEFENDANT-RESPONDENT.


SIDNEY P. COMINSKY TRIAL LAWYERS, LLC, SYRACUSE (JENNIFER CAGGIANO OF
COUNSEL), FOR PLAINTIFF-APPELLANT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(James P. Murphy, J.), entered March 17, 2014. The judgment, among
other things, awarded plaintiff the sum of $43,688.14 as against
defendant.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by denying defendant’s motion and
reinstating the claim for punitive damages, and the matter is remitted
to Supreme Court, Onondaga County, for a new trial on the issue of
punitive damages only, and as modified the judgment is affirmed
without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained as a result of being assaulted by defendant
while both were students at Syracuse University. Prior to trial,
Supreme Court granted plaintiff’s motion for summary judgment on the
issue of liability with respect to the assault cause of action and
granted defendant’s motion to strike plaintiff’s claim for punitive
damages. The jury awarded plaintiff $40,000 for past pain and
suffering and made no award for future pain and suffering. Plaintiff
moved to set aside the verdict on the ground that, inter alia, it was
inadequate in all respects. The court denied the motion and entered
judgment against defendant in the sum of $43,688.14. Plaintiff now
appeals.

     Contrary to plaintiff’s contention, the court did not abuse its
discretion in precluding a campus security officer from narrating
during his testimony a video surveillance recording of the incident.
Notably, the security officer did not witness the incident (cf. People
v Boyd, 97 AD3d 898, 899, lv denied 20 NY3d 1009). Although under
certain circumstances a witness may be permitted to give opinion
testimony concerning particular persons, places, or things depicted in
a properly authenticated surveillance video (see People v Russell, 79
NY2d 1024, 1025; People v Ray, 100 AD3d 933, 933, lv denied 20 NY3d
1103), we reject plaintiff’s contention that the court should have
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                                                         CA 15-00082

permitted the security officer to provide the jury with an open-ended
narration or explanation of the events depicted in the video.

     We reject plaintiff’s further contention that the award of
$40,000 for past pain and suffering “deviates materially from what
would be reasonable compensation” (CPLR 5501 [c]). Defendant
submitted at trial abundant medical evidence establishing that
plaintiff exaggerated his injuries and had promptly and fully
recovered from them. Thus, we conclude that the award of $40,000 for
past pain and suffering did not deviate materially from what would be
reasonable compensation (see generally Minscher v McIntyre, 277 AD2d
435, 436, lv denied 96 NY2d 717). Contrary to plaintiff’s further
contention, the court properly denied that part of his motion seeking
to set aside the verdict with respect to the award of damages for
future pain and suffering. The jury’s decision not to award damages
for future pain and suffering “was based upon a fair interpretation of
the evidence . . . , with consideration given to the credibility of
the witnesses and the drawing of reasonable inferences therefrom,” and
we discern no basis in the record to disturb the jury’s resolution of
credibility issues against plaintiff (Raso v Jamdar, 126 AD3d 776,
777; see Abdelkader v Shahine, 66 AD3d 615, 616-617).

     We agree with plaintiff, however, that the court erred in
granting defendant’s motion to strike his claim for punitive damages.
It is well settled that punitive damages may be awarded in an action
to recover damages for assault (see Matthews v Garrett, 303 AD2d 563,
563; Buggie v Cutler, 222 AD2d 640, 642, lv denied 88 NY2d 807;
Falcaro v Kessman, 215 AD2d 432, 432-433). Here, we conclude that
defendant’s plea allocution and conviction of harassment in the second
degree (Penal Law § 240.26), which arose out of the same events
alleged in this action, were sufficient to raise a jury question on
the issue of punitive damages. We therefore modify the judgment by
denying defendant’s motion and reinstating the claim for punitive
damages, and we remit the matter to Supreme Court for a trial on that
claim.

     We have considered plaintiff’s remaining contentions and conclude
that they are without merit when viewed in the context of the
compensatory damages trial. In light of our determination, we decline
to prospectively address the admissibility of evidence with respect to
punitive damages inasmuch as appropriate review may be conducted only
after the trial on remittal and “when the propriety of the challenged
ruling[s] can be assessed, not speculatively, but in the context of
[their] application to a concrete factual controversy” (Hargrave v
Presher, 221 AD2d 677, 678; see also Strait v Ogden Med. Ctr., 246
AD2d 12, 14).




Entered:   March 25, 2016                       Frances E. Cafarell
                                                Clerk of the Court
