Opinion
32653/07.
Decided March 1, 2011.
Daniel C. Ross Esq, Keegan Keegan, Ross Rosner, Attorneys for Plaintiff, Mattituck NY.
Michael S. Cox Esq, Attorney for Defendants, Lindenhurst NY.
NATURE OF THE ACTION
Plaintiff commenced this action by Summons and Complaint dated October 16, 2007. Plaintiff alleged that Defendant struck Plaintiff causing serious physical injury, emotional distress, mental anguish, and long term diminution of her earning capacity. Defendants filed a Verified Answer, denied the allegations, and claimed that Plaintiff's injuries were caused by her culpable conduct and that Defendants' conduct was justified pursuant to NY Penal Law § 35.15. The action was transferred, pursuant to NY Civ. Pract Law Rules § 325(d), to this Court for trial. The Court conducted a one day bench trial. Only two persons testified, the Plaintiff, and the Defendant Gustav Hatzidakis. At the conclusion of all testimony, the parties stipulated and Plaintiff withdrew her action against co-defendant Elisa Hatzidakis.
THE TESTIMONY
According to Plaintiff, on June 9, 2007, Plaintiff visited her daughter's apartment for Plaintiff's niece's 18th birthday. The daughter's boyfriend was present. The daughter's apartment was a detached structure located on the property rented by the Defendant. Plaintiff arrived about 4:00PM. Plaintiff, her daughter and the boyfriend, were talking in the apartment when they then moved outside to the patio portion outside the apartment front door. A radio was playing, loud but not blaring, on the patio at the bottom of the steps leading into the apartment. The niece left and walked to the store for cigarettes. Plaintiff, her daughter and the boyfriend, went into the apartment kitchen to prepare the food. Suddenly, about 5:00PM, Defendant appeared, unannounced, in the doorway of the apartment. Defendant asked the boyfriend what was going on, then asked when the boyfriend would be paying for a broken cabinet. The Defendant and boyfriend began to approach each other aggressively when Plaintiff stepped in front of the boyfriend. She directed her daughter to take the boyfriend into the bedroom, and she then asked the Defendant to talk outside. Plaintiff said that she and Defendant stepped outside the apartment and were standing on the top step when a woman (later identified as Defendant's wife) and two men approached from around the side of the apartment. Plaintiff claimed that the woman, without provocation, was cursing at Plaintiff. As Plaintiff descended the steps to approach the woman, Plaintiff observed from the corner of her eye a person approaching her from the right. Plaintiff testified that her instinct was to raise her right arm up, in a defensive reflex, but did not make contact with any person. Just as she realized that the person who approached her was a young girl, Plaintiff was broadsided on her left side and pushed to the ground. When she looked up, Defendant was standing over her. Plaintiff testified that when she tried to get up, Defendant pushed her back to the ground. When the daughter's boyfriend came to her assistance, he was tackled by the two men accompanying the woman. The police arrived, but no arrests were made. Plaintiff declined medical care. Without objection, Plaintiff introduced into evidence her medical records showing that she suffered a left knee meniscal [sic] tear. She attended physical therapy, and wore a hinged brace for a period of time. By August 20, 2007, the physician reported that "I believe she is healed at this time" and "because of this, she will discontinue the use of the hinged brace." However, "she will remain totally temporarily disabled from all work duties at this time." Plaintiff said she worked as a deli clerk at a local supermarket earning $10.50 per hour. She testified she worked 40 hours per week, with time-and-a-half for overtime on Sundays. She collected disability during this time, which she described as "not much, like 140 maybe something."
Defendant testified that he came home about 6:00PM after an afternoon at OTB. From his kitchen he could hear yelling and cursing from the apartment. His wife told him that the Plaintiff's daughter and boyfriend had been arguing all afternoon. Defendant opened his back door and yelled towards the apartment to be quiet and stop the language. He heard the boyfriend curse back at him, so Defendant left his kitchen and walked towards the apartment. He did not realize that his 12 year old daughter had followed behind him. As Defendant and the boyfriend started exchanging words outside the apartment, Defendant said the Plaintiff exited the apartment, walked straight to the Defendant's 12 year old daughter who was standing next to him, and Plaintiff punched the 12 year old in the face. It was at that time that Defendant admits he threw Plaintiff to the ground to protect his daughter. His wife had just arrived and Defendant yelled to his wife to call the police. Defendant said there were not two men at the scene, but that later a neighbor came onto the property to see what was the commotion. The police arrived and made no arrests. The 12 year old had a bloody nose from the Plaintiff's punch, and suffered headaches for a couple of days.
ANALYSIS
In a matter such as this, it is the province and indeed the obligation of the trial court to assess and determine matters of credibility. Morgan v McCaffrey , 14 AD3d 670 , 789 N.Y.S.2d 274 (2d Dep't 2005); Matter of Liccione v Michael A., 65 NY2d 826, 493 N.Y.S.2d 121 (1985). Here, the burden is upon the plaintiff to plead and prove her direct case by a fair preponderance of the credible, relevant and material evidence with the same burden imposed upon the Defendant respecting his affirmative defenses. Prince-Richardson on Evidence, § 3-210; Torem v Central Avenue Rest, 133 AD2d 25, 518 N.Y.S.2d 620 (1st Dep't 1987). The failure of a party to call as a witness an available person under his control who is in a position to testify concerning a material fact, creates an adverse inference that the witness would not have controverted material testimony adverse to the party who failed to call him. Richardson on Evidence, § 1126, 2d Edition, Lond Publications, 1977. The requisite elements of a cause of action for battery are: (1) bodily contact, (2) that such contact be harmful and offensive, and (3) that the defendant intended to make contact. Rosa v Levinson, 25 Misc 3d 1207(A), 901 N.Y.S.2d 901 (Kings Cnty SupCt, 2009); see also , Cerilli v Kezis , 16 AD3d 363 , 790 N.Y.S.2d 714 (2d Dep't 2005). To sustain a cause of action to recover damages for assault, there must be proof of physical conduct placing plaintiff in imminent apprehension of harmful contact. Rosa v Levinson, id.; see also, Marilyn S v Independent Group Home Living Program, Inc., 73 AD3d 895, 904 N.Y.S.2d 70 (2d Dep't 2010). Determination of whether to award punitive damages lies in the discretion of the trier of facts. Collins v Willcox Incorporated, 158 Misc 2d 54, 600 N.Y.S.2d 884 (NY Cnty, SupCt, 1992). Damages might not be sustained where there is no competent, medical evidence, expert or otherwise, attesting to the severity and consequences of any mental anguish that plaintiff may have suffered. Herrera v Braunstein , 10 Misc 3d 104 , 810 N.Y.S.2d 775 (App Term, 1st Dep't, 2006). Plaintiff would not be permitted to prove punitive damages where she made no allegations beyond those of ordinary negligence, and defendant was not given proper notice of such a claim. Gravitt v Newman, 114 AD2d 1'000, 495 N.Y.S.2d 439 (2d Dep't 1985). Plaintiff is not entitled to damages for past lost earnings where there is no evidence of the plaintiff's income for the time preceding the incident. Papa v City of New York, 194 AD2d 527, 598 N.Y.S.2d 558 (2d Dep't 1993). 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. Plaintiff described a physical, knock-to-the-ground brawl where both she and her daughter's boyfriend were tackled without provocation. However, Plaintiff did not call the police officer, nor her daughter or the daughter's boyfriend, to testify. Plaintiff explained that both her daughter and boyfriend currently reside out of state. However, their unavailability could have been addressed through the NY Civ. Pract Law and Rules regarding depositions of unavailable witnesses. The Court takes a missing witness negative inference for failing to call the daughter or boyfriend to testify. But for the Defendant admitting the physical contact with the Plaintiff, the Court doubts, given the facts and circumstances herein, that Plaintiff would have proven her case. Absent evidence establishing the element of apprehension (the Plaintiff testified that she did not see the contact coming), the Defendant's conduct was that of a battery, not an assault. The Court now moves to consider the Defendant's affirmative defense.
Defendant described how Plaintiff simply exited the apartment, walked straight to the 12 year old child standing next to her father, and punched the child square in the face causing a bloody nose. However, Defendant did not call the police officer, nor his wife or 12 year old daughter, to testify. The Court takes a missing witness negative inference for failing to call the wife or daughter to testify. This Court finds it unbelievable that, as mandated reporters pursuant to Soc Services Law § 413, the Suffolk County Police would not have filed a report of suspected child abuse or maltreatment after arriving at a scene where a 12 year old was punched in the face by an adult. It is equally unbelievable, after observing the physical characteristics of the parties in court, that Plaintiff would have walked straight to the 12 year old child standing next to Defendant and punch her square in the face. The Court is not persuaded that Defendant's physical contact with Plaintiff was justified, nor that it was necessary to protect his daughter. The Court must now consider the Plaintiff's request for damages.
The Plaintiff seeks (1) punitive damages, (2) damages for pain and suffering, and (3) damages for lost income. First, Plaintiff did not allege punitive damages in her complaint. Therefore, no such award is granted. As for pain and suffering, Plaintiff failed to provide any competent testimony that established Plaintiff's mental anguish, pain or suffering. She testified that she was then currently under the doctor's care for a damaged shoulder from work, and had a prior injury to the other leg. Except for describing the diagnosis of the 2007 injury, and the short period of disability, Plaintiff offered no testimony about any incapacities, such as difficulty sleeping or inability to tend to everyday needs. Nor did she distinguish between any pain caused by the subject injury and that of any pain she was already experiencing from the pre-incident, injuries. She did testify that she was able to drive during this period. As the trier of fact, this Court does not make an award for pain and suffering. Lastly, Plaintiff testified she worked 40 hours weekly, with overtime. However, she failed to provide proof of income or earnings to the Court. The same question of credibility the Court has about Plaintiff's description of events must impact upon Plaintiff's testimony about her earnings. Even if the Court credited Plaintiff's testimony about earning $10.50 per hour, the Court was deprived of calculating the actual lost income because the Plaintiff failed to provide, inter alia, proof of actual hours worked before the incident, actual dates of disability, tax consequences, and actual amounts of what she collected from disability. Plaintiff's only testimony about her disability payments was that she received "like 140 maybe something." Thus, the Court was deprived of sufficient evidence upon which to calculate lost income with reasonable certainty. See, Papa v City of New York, 194 AD2d 527, supra. Accordingly, the Court makes no award for lost income.
This constitutes the decision and order of the Court.
Submit judgment.