FILED: WESTCHESTER COUNTY CLERK 04/03/2019
`NYSCEF DOC. NO. 183
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`INDEX NO. 69747/2014
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`RECEIVED NYSCEF: 04/04/2019
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`FILED: WESTCHESTER COUNTY CLERK 04m2019
`NYSCEF DOC. NO. 183
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`INDEX \TO- 69747/2014
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`R«C«IV«D NYSCEF: 04/04/2019
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`Appellate lfliuiatnn: Swami) Sluhirial lBepartmmt
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`D57793
`M/htr
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`AD3d
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`Argued - September 4, 2018
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`MARK C. DILLON, J .P.
`COLLEEN D. DUFFY
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`FRANCESCA E. CONNOLLY
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`LINDA CHRISTOPHER, JJ .
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`2017-04891
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`2017-08972
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`FILED DECISION & ORDER
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`Noelle Feldman, respondent, v William Knacl<,
`appellant.
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`TIMOTH'
`COUNrCfUN" v JLERK
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`(Index No. 69747/ 14)
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`Miller & Lee LLP, Scarsdale, NY (Joseph Miller and Marcy Blake of counsel), for
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`appellant.
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`Bleakley Platt & Schmidt, LLP, White Plains, NY (John P. Hannigan, Peter F.
`Harrington, and Justin M. Gardner of counsel), for respondent.
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`In an action, inter alia, to recover damages for personal injuries arising from an
`alleged forcible rape, the defendant appeals from (1) a judgment of the Supreme Court, Westchester
`County (Terry Jane Ruderman, J .), dated April 12, 2017, and (2) an order of the same court dated
`July 19, 2017. The judgment, upon the denial of the defendant’s motion pursuant to CPLR 4401,
`made at the close of evidence, for judgment as a matter of law, and upon a jury verdict in favor of
`the plaintiff on the issue of liability and awarding the plaintiff the principal sums of $250,000 for
`past pain and suffering, $200,000 for future pain and suffering, and $500,000 for punitive damages,
`is in favor of the plaintiff and against the defendant in the principal sum of $950,000. The order
`denied the defendant’s motion pursuant to CPLR 4404(a) to set aside the verdict and for judgment
`as a matter of law or, in the alternative, to set aside the verdict as contrary to the weight of the
`evidence or in the interest of justice and for a new trial or, in the alternative, to set aside, as
`excessive, the verdict on the issue of damages.
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`ORDERED that the judgment and the order are affirmed, with one bill of costs.
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`The plaintiff commenced this action, inter alia, to recover damages for personal
`injuries she alleged she sustained when the defendant, her former psychotherapist, sexually assaulted
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`her in his office during a therapy session. The defendant moved for summary judgment dismissing
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`of action alleging forcible rape.
`FILED: WESTCHESTER COUNTY CLERK 04/03/2019
`NYSCEF DOC. NO. 183
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`INDEX NO. 69747/2014
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`RECEIVED NYSCEF: 04/04/2019
`Following a jury trial, the jury returned a verdict in favor of the plaintiff on the issue
`of liability and awarding the plaintiff the principal sums of $250,000 for past pain and suffering,
`$200,000 for future pain and suffering, and $500,000 for punitive damages. A judgment was entered
`(Terry Jane Ruderman, J.) in favor of the plaintiff and against the defendant in the principal sum of
`$950,000. Thereafter, the defendant moved, inter alia, pursuant to CPLR 4404(a) to set aside the
`verdict and for judgment as a matter of law or, in the alternative, to set aside the verdict as contrary
`to the weight of the evidence and for a new trial or, in the alternative, to set aside, as excessive, the
`verdict on the issue of damages.
`In an order datedJuly 19, 2017, the Supreme Court (Terry Jane
`Ruderman, J.) denied the defendant’s motion. The defendant appeals from the judgment and the
`order dated July 19, 2017.
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`The defendant failed to establish his prima facie entitlement to judgment as a matter
`of law dismissing the cause of action alleging forcible rape, as he did not eliminate triable issues of
`fact as to whether the alleged rape occurred (see Zuckerman v City ofNew York, 49 NY2d 557, 562).
`Although the defendant raised issues of credibility, he did not establish that the plaintiff was
`incredible as a matter of law (see Zalewski v MH Residential 1, LLC, 163 AD3d 900, 901; Zapata
`v Buitriago, 107 AD3d 977, 979). Since the defendant failed to sustain his prima facie burden, it
`is unnecessary to consider the sufficiency of the plaintiff’s opposition papers (see Winegrad v New
`York Univ. Med. Ctr., 64 NY2d 851, 853). Accordingly, we agree with the Supreme Court’s
`determination, in effect, denying that branch of the defendant’s motion which was for summary
`judgment dismissing the cause of action alleging forcible rape.
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`The Supreme Court providently exercised its discretion in admitting into evidence
`at trial two audio recordings of telephone conversations between the parties. Contrary to the
`defendant’s contention, although the defendant’s voice in the first nine minutes of one of the
`recorded conversations was inaudible, the jury was not left to speculate as to what transpired, as the
`defendant acknowledged the authenticity of his voice on the recordings and both the plaintiff and
`the defendant testified about the conversations at issue, including the inaudible portion (see People
`v McCaw, 137 AD3d 813, 815; People v Grifiin, 98 AD3d 688, 689). Thus, any infirmities in the
`recordings pertain to the weight of the evidence and not to its admissibility (see People v McCaw,
`137 AD3d at 815; People v Lewis, 25 AD3d 824, 827).
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`“‘A motion for judgment as a matter of law pursuant to CPLR 4401 or 4404 may be
`granted only when the trial court determines that. upon the evidence presented. there is no valid line
`of reasoning and permissible inferences which could possibly lead rational persons to the conclusion
`reached by the jury upon the evidence presented at trial, and no rational process by which the jury
`could find in favor of the nonmoving party’” (Hiotia’is v Ramuni, 161 AD3d 955, 956, quoting Tapia
`v Dattco, Inc., 32 AD3d 842, 844). “In considering such a motion, ‘the trial court must afford the
`party opposing the motion every inference which may properly be drawn from the facts presented,
`and the facts must be considered in a light most favorable to the nonmovant’” (Hiotidis v Ramuni,
`161 AD3d at 956, quoting Hand v Field, 15 AD3d 542, 543 [internal quotation marks omitted]).
`Here, viewing the evidence in the light most favorable to the plaintiff, and affording her every
`inference which may properly be drawn from the facts presented, a rational jury could have found
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`March 6, 2019
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`Page 2.
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`FELDMAN v KNACK
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`FILED: WESTCHESTER COUNTY CLERK 04/03/2019
`NYSCEF DOC. NO. 183
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`INDEX NO. 69747/2014
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`RECEIVED NYSCEF: 04/04/2019
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`FILED: WESTCHESTER COUNTY CLERK 04312019
`NYSCEF DOC. NO. 183
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`INDEX \10'
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`RaCaIVaD NYSCEF:
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`69747/2014
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`04/04/2019
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`that the defendant forcibly raped the plaintiff (see Hiotidis v Ramuni, 161 AD3d at 956; Hand v
`Field, 15 AD3d at 543).
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`To the extent that the defendant argues that the verdict was contrary to the weight of
`the evidence, “a jury verdict should not be set aside as contrary to the weight of the evidence unless
`the jury could not have reached the verdict by any fair interpretation of the evidence” (Shellkopf v
`Bernfeld, 162 AD3d 1086, 1086; see Lolik v Big V Supermarkets, 86 NY2d 744, 746). “Whether
`a jury verdict should be set aside as contrary to the weight of the evidence does not involve a
`question of law, but rather requires a discretionary balancing of many factors” (Shellkopfv Bernfeld,
`162 AD3d at 1086-1087; see Cohen v Hallmark Cards, 45 NY2d 493, 499; Nicastro v Park, 113
`AD2d 129, 133). “‘It is for the jury to make determinations as to the credibility of the witnesses, and
`great deference in this regard is accorded to the jury, which had the opportunity to see and hear the
`witnesses’” (Shellkopfv Bernfeld, 162 AD3d at 1087, quoting Jean-Louis v City of New York, 86
`AD3d 628, 629 [internal quotation marks omitted]). Here, we agree with the Supreme Court’s
`determination that the jury’s verdict was based on a fair interpretation of the evidence.
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`“The amount of compensation to be awarded to an injured person is a question of fact
`to be resolved by the trier of fact and will only be disturbed when it deviates materially from what
`would be reasonable compensation” (Munzon v Victor at Fifth, LLC, 161 AD3d 1 183, 1 185-1 186).
`Contrary to the defendant’s contention, the awards of $250,000 for past pain and suffering and
`$200,000 for future pain and suffering did not deviate materially from what would be reasonable
`compensation.
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`“Punitive damages are recoverable where the conduct in question evidences ‘a high
`degree of moral culpability,’ or ‘the conduct is so flagrant as to transcend mere carelessness,’ or ‘the
`conduct constitutes willful or wanton negligence or recklessness’” (Morton v Brookhaven Mem.
`Hosp., 32 AD3d 381, 381, quoting Lee v Health Force, 268 AD2d 564, 564). “Whether to award
`punitive damages in a particular case, as well as the amount of such damages, if any, are primarily
`questions which reside in the sound discretion of .
`.
`. the jury, and such an award is not lightly to be
`disturbed” (Nardelli v Stamberg, 44 NY2d 500, 503 [citations omitted]; see Solis-Vicuna v Notias,
`71 AD3d 868, 871; Laurie Marie M. v Jeffrey T.M., 159 AD2d 52, 59-60, afi‘d 77 NY2d 981).
`Contrary to the defendant’s contention, the award of punitive damages was appropriate because the
`defendant’s acts were particularly heinous (see Solis-Vicuna v Notias, 71 AD3d at 871) given his
`fiduciary relationship to the plaintiff as her treating psychotherapist and his knowledge that the
`plaintiff, who had previously been the victim of a sexual assault, was a vulnerable client (see Laurie
`Marie M. v Jeffrey T.M., 159 AD2d at 58-59; see generally Aliano v Lusterman, 287 AD2d 473,
`474). The award of $500,000 for punitive damages was not excessive (see Solis-Vicuna v Notias,
`71 AD3d at 871).
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`DELONQWREMUWIGWNWQRK CHRISTOPHER, JJ., concur.
`APPELLATE DIVISION SECOND DEPT.
`l, APRILANNE AGOSTINO, Clerk of the Appellate Division of
`Court, Second Judicial Department, do hereby certifythatl ha
`this co with the original filed in my office on.
`.
`tha
`this coiii is a correct transcri
`tion of said onginralMAR 0 6 Zed-III!
`IN WITNESS WHERE F l have hereunto set my hand and affixed Aprilanne Agostino
`the seal ofthis CourmR 0 6 3%]?
`‘Z W”
`Clerk ofthe Court
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`FILED: WESTCHESTER COUNTY CLERK 04/03/2019
`NYSCEF DOC. NO. 183
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`INDEX NO. 69747/2014
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`RECEIVED NYSCEF: 04/04/2019
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