Draper v. Newbold

54 A.D.2d 677, 388 N.Y.S.2d 90, 1976 N.Y. App. Div. LEXIS 14215

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 28, 1976
• Status: Published

Opinion

Order, Appellate Term, entered December 17, 1975, which modified a judgment of the Civil Court, entered February 7, 1975, by vacating that portion thereof based upon an award of punitive damages to plaintiff and remanding that cause for retrial, and otherwise affirming the judgment for compensatory damage, unanimously modified, on the law, to the extent of dismissing the cause of action for punitive damages, and otherwise affirmed, without costs and without disbursements. In affirming the jury’s award of compensatory damages to plaintiff-respondent for the assault committed upon her by defendant-appellant, Appellate Term found the award for punitive damages to be "against the predominating weight of the credible evidence” when viewed "most favorably to the plaintiff” and "that defendant’s conduct, while inexcusable was * * * [not] so wanton or reckless as to permit award for punitive damages.” "Absent a motion by defendant to deny plaintiff punitive damages and absent a proper exception to the charge submitting this issue to the jury,” the case was remanded for retrial. However, despite absence of such a motion or exception, we find that no reasonable view of the evidence could have justified a finding of wantonness, and we conclude that the cause for punitive damages should, accordingly, have been dismissed without submission to the jury. Concur&emdash;Markewich, J. P., Birns, Capozzoli, Nunez and Yesawich, JJ.