Preview
FILED: KINGS COUNTY CLERK 01/10/2024 04:09 PM INDEX NO. 509728/2014
NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 01/10/2024
At an lAS Term, Part 83 of the Supreme
Court of the State of New York, held in and
for the County of Kings, at the Courthouse,
at 360 Adams Street, Brooklyn, New York,
on the ~ day of~, 2024.
PRE SEN T: HON. INGRID JOSEPH, J.S.c.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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MAJA RUSZCZYK,
Plaintiff,
-against- Index No.: 50972812014
DAOUDA GAGARA DaSILVA a/k/a
DAVID DaSILVA DECISION AND ORDER
Defendant.
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The following e-filed papers read herein: NYSCEF Doc. Nos.:
Notice of Motion! Affirmation in Support/Memorandum of Law
Exhibits : . 94-100
Affirmation in Opposition! . 101
Defendant Daouda Gagara DaSilva alk/a David DaSilva ("Defendant") moves (a)
pursuant to CPLR 4401, for a directed verdict; or (b) alternatively, pursuant to CPLR 4404(a),
for an order (i) vacating the verdict and granting Defendant judgment notwithstanding the
verdict, or (ii) setting aside the jury's award and ordering a new trial on damages; and (c)
pursuant to CPLR 4404 (a), for an order directing a collateral source hearing pursuant to CPLR
4404 (Mot. Seq. No.6). Plaintiff opposes the motion.
This action arises out of a rape that occurred on December 16, 2012, which Plaintiff
alleges was perpetrated by Defendant. The issue of liability was resolved in Plaintiff s favor
after Defendant's answer was stricken (NYSCEF Doc No. 64).1 The matter proceeded to trial on
damages, whereupon a jury awarded Plaintiff as follows: $1,750,000 for past pain and suffering;
I See NY St Cts Elec Filing [NYSCEF] Doc NO.9, tr at 74: 10-12, 76: 13-21). "[A] defendant whose answer is
stricken as a result of a default admits all traversable allegations in the complaint, including the basic allegation of
liability, but does not admit the plaintiffs conclusion as to damages" (Rokina Optical Co. v Camera King, Inc., 63
NY2d 728, 730 [1984], citing McClelland v Climax Hosiery Mills, 252 NY 347, 351 [1930)).
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$5,140 for past medical expenses; $1,200,000 for future pain and suffering; $50,000 for future
medical expenses; and $1,216,012 for punitive damages?
Defendant moves for a directed verdict on the grounds that Plaintiff did not meet her
burden in'. establishing that she suffered any compensable damages for which Defendant is
responsible. Defendant also moves for an order vacating the verdict and granting Defendant
judgment notwithstanding the verdict on the grounds that (a) the evidence was insufficient to
submit the issue of damages to the jury , (b) the Court committed error by (i) refusing to allow
Defendant to testify and provide evidence directly contradicting Plaintiffs testimony and (ii)
refusing to charge the jury on Aggravation of Pre-Existing Injury (PH 2:282) and instead
charging Susceptibility to Injury (PH 2:283), and (c) Defendant was denied a fair trial.
Alternatively, Defendant moves to set aside the jury's award as excessive and against the weight
of the evidence. Finally, Defendant requests a collateral source hearing on the issue of medical
expenses because the Affordable Care Act allows Plaintiff to procure health insurance, even with
a pre-existing condition.
In opposition, Plaintiff argues that Defendant has failed to proffer any argument in
support of his contention that Plaintiff did not meet her burden of establishing any compensable
damages. Further, Plaintiff contends that Defendant fail.ed to establish that the jury could not
have reached its verdict on a fair interpretation of the evidence presented. With respect to the
jury's award, Plaintiff alleges that it does not deviate materially from what has been awarded in
comparable cases; thus, the award should stand. In addition, Plaintiff argues that the Court
properly precluded Defendant's testimony because Defendant's counsel represented that he
would not be calling any witnesses and Plaintiff did not have an opportunity to depose Defendant
on the issue of damages prior to trial. As to the jury charge, Plaintiff claims that the Court
properly charged Susceptibility to Injury because there was no evidence before the jury that
Plaintiff had a pre-existing injury. Plaintiff also argues that a collateral source of payment must
be plead as an affirmative defense, which Defendant failed to do. Plaintiff claims that even if
Defendant had pled collateral source as an affirmative defense, Plaintiff argues that the mere
existence of the Affordable Care Act is insufficient and Defendant has not proffered evidence to
2Per the verdict sheet, Plaintiff's awards for future pain and suffering and future medical expenses were intended to
cover a period of 10 years and 20 years, respectively (NYSCEF Doc No. 93),
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establish that Plaintiff's economic losses may have been, or in the future be, replaced, or that the
Plaintiff was indemnified from, collateral sources.
A defendant seeking a judgment as a matter of law under CPLR 4401 or 4404(a) has the
"burden of establishing that there is no rational process by which the jury could find for the
plaintiff against the moving defendant" (Broadie v St. Francis Hosp., 25 AD3d 745, 746 [2d
Dept 2006] [internal citations omitted]). The Court must accept the plaintiff's evidence as true,
and "the plaintiff is entitled to every favorable inference which can reasonably be drawn from
the evidence" (id.).
Though Defendant seeks a directed verdict under CPLR 440 I, the moving papers are
devoid of any substantive argument or caselaw in support thereof. The papers merely state that
Defendant is entitled to a directed verdict because "no triable issue of fact exists concerning
Plaintiff having suffered: (a) pain and suffering and loss of enjoyment from life from 12/16/2012
to 6/27/2022; (b) past medical expenses from 12/16/2012 to 6/27/2022; (c) future pain and
suffering and loss of enjoyment of life from the time of verdict to the time that the plaintiff is
expected to live; (d) future medical expenses from the time of the verdict to the time that the
plaintiff is expected to live; and, (e) that plaintiff is entitled to punitive .damages." Since
Defendant has failed to meaningfully address the portion of his motion seeking a directed
verdict, with either facts or case law, the Court finds that Defendant has failed to sustain his
burden. Accordingly, Defendant's motion for a directed verdict is denied.
The Court next turns to Defendant's request under CPLR 4404(a) to vacate the verdict
and grant Defendant judgment notwithstanding the verdict. "In considering [a motion pursuant
to CPLR 4404(a)], [t]he Trial Judge must decide whether substantial justice has been done,
whether it is likely that the verdict has been affected and must look to his [or her] own common
sense, experience and sense of fairness rather than to precedents in arriving at a decision"
(Heubish v Baez, 178 AD3d 779, 780 [2d Dept 2019] [internal citations and quotation marks
omitted]).
With respect to Defendant's argument that the evidence was insufficient to submit the
issue of damages to the jury, the Court again finds that Defendant failed to proffer any proof or
legal argument to substantiate such claim. Defendant's further contention that the Court
committed an error by precluding Defendant from testifying at trial and providing evidence,.
which allegedly directly contradicted Plaintiff's testimony, is unavailing .. On or about February
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17, 2017, Justice Donald S. Kurtz issued an order granting Plaintiff's motion to strike
Defendant's answer on default.3 Prior to the commencement of trial, Defendant's counsel
represented that the defense would not call any witnesses.4 After the trial commenced,
Defendant's counsel sought to c~ll Defendant as a witness. According to his counsel, Defendant
had direct evidence that would contradict Plaintiff's testimony concerning her damages and
should have been allowed to testify. The Court ruled that Defendant would not be allowed to
testify, in part, because he had not been previously deposed and has no medical expertise that
would have allowed him to rebut any medical or psychological testimony by Plaintiff's expert.
The Court does not find that its preclusion of Defendant was erroneous for the following reasons.
First, Defendant waited until the second day of trial to apprise the Court and Plaintiff that he
wanted to testify, foreclosing on Plaintiff's ability to obtain discovery prior to. trial (Reynolds
Sec., Inc. v Underwriters Bank & Tr. Co., 44 NY2d 568, 573 [1978] [holding that a defendant's
default does not mean that "plaintiff is to be handicapped in the proof of its damages by
defendant's prior defiance of orders, notices, or. subpoenas calling for his production of records
or the taking of his deposition"]; Mahgoub v 880 Realty, LLC, 150 AD3d 1216, 1219 [2d Dept
2017] [a party is permitted to testify at trial if the other side is given the opportunity to conduct
his deposition D. Second, during the trial, the Defendant made statements that encroached on the
issue of liability in the presence of the jury. 5 Defendant also represented to the Court that he
wanted to raise the issue of him not having raped Plaintiff during the damages portion of the
tria1.6 The Court repeatedly explained to Defendant that his liability had already been
determined by a prior judge and the case was sent to be tried only on the issue of damages.? Not
once during Defendant's outbursts did he raise any argument relating to Plaintiff's damages.
Third, Defendant has no medical expertise that would have allowed him to rebut the medical
testimony of Plaintiff's expert Mr. Joe Preval, a licensed mental health therapist.
Defendant claims that the Court committed an error by refusing to charge the jury on
Aggravation of a Pre-Existing Injury. According to Defendant, a reasonable view of the
evidence would support this charge. Defendant in general relies on the testimony of Mr. Preval
regarding Plaintiff's mental status and the definition of post-traumatic stress disorder and
3 NYSCEF Doc No. 64.
4 NYSCEF Doc No. 97, tr at 59:23-24.
sId., tr at 72:20-22 ("I can't have her pointing her finger at me saying 1 raped her. 1 didn't rape her").
6 Jd., tr at 73 :25-74:2 ("I haven't raped her. I have proof, 1 have evidence and you are refusing me to admit it.").
7 Id., tr at 74:7-25,75:22-76:2.
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symptoms therefrom. The Court notes that Defendant did not cite to any specific testimony.
Defendant essentially contends that with his testimony alone, a jury could find that Plaintiff,
following her parents' death and her sister's abandonment, suffered from a pre-existing mental
health injury. At trial, Plaintiffs expert Mr. Preval answered "No" when asked whether Plaintiff
suffered from post-traumatic stress disorder, major depressive disorder, panic disorders and
suicide ideations before the rape.s With respect to Plaintiffs prior losses, Mr. Preval testified
that Plaintiff was "more susceptible," "more predisposed" and "vulnerable," but that "it wasn't
the cause of all of [Plaintiffs] symptoms."9 Defendant did not proffer his own medical expert or
any evidence that Plaintiff had been previously diagnosed with the same medical conditions.
Thus, the Court finds that there was no evidence to warrant Aggravation of Pre-Existing Injury
charge (see Medina v Chownwai, 211 AD2d 526, 527 [1st Dept 1995] [sufficient evidence to
warrant charge of aggravation of preexisting injury, in part, where defendant's medical expert
testified that plaintiff probably suffered from a chronic back condition); Kirschhoffer v Van
Dyke, 173 AD2d 7, 9 [3d Dept 1991] [PH 2:282 charge is not warranted where there is no
evidence a condition was anything but latent and asymptomatic or where the condition never
manifested before accident]).
The Court now turns to Defendant's claim that the jury's awards were excessive,
speculative, inconsistent with other awards, and against the weight of the evidence. Since
Defendant failed to provide any arguments in support of his contentions that the awards were
speculative and against the weight of the evidence, the Court will only address his claims as to
excessiveness. In a personal injury action, the question of damage-whether to award
compensatory and punitive damages and the determination of the amount-is for the trier of fact
(CPLR 5505 [c]; Graves v New York City Transit Auth., 81 AD3d 589 [2d Dept 2011]; Nardelli
v Stamberg, 44 NY2d 500, 503 [1978] [internal citations omitted]). An award of compensatory
damages will only be disturbed "if it deviates materially from what would be reasonable
compensation" (Graves, 81 AD3d at 589). The amount of punitive damages awarded will only
be reduced if "it is so grossly excessive as to show by its very exorbitancy that it was actuated by
passion" (Nardelli, 44 NY2d at 504 [internal citations and quotation marks omitted]). Although
courts may consider prior and similar awards, the amount of damages awarded in other cases are
8 Id., trat 101:10-15; 101:25-102:5.
9 Id., tr at 102:6-12.
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not binding (Senko v Fonda, 53 AD2d 638, 639 [2d Dept 1976] [internal citation omitted]).
Some of the factors that a court "may consider and evaluate in assessing the appropriateness of
an award of damages for a sexual assault are the social and emotional betrayal, humiliation and
isolation suffered by the victim as well as the threat to the victim's self-esteem and physical,
psychic and emotional integrity and health, in addition to actual therapeutic and medical
expenses" (Mathie v Fries, 935 F Supp 1284, 1306 [ED NY 1996], affd 121 F3d 808 [2d Cir
1997] [internal quotation marks omitted]).
In this case, Plaintiff testified extensively about how the Defendant's rape impacted, and
continues to impact, different aspects of her life, evidence of which was supported by the expert
testimony of Mr. Preval. Plaintiff testified that following the rape, she turned to alcohol and
cutting to cope with her problems, struggled in school, attempted suicide, and experienced panic
attacks.'o She further testified that to this day, she cannot, in part, (a) really trust anyone around
her, especially males, (b) form healthy relationships with men, or (c) sleep on her side since she
feels the presence of Defendant behind her. I'Where, as here; there is testimony of serious and
long-lasting psychological and emotional trauma after a sexual assault or rape, courts have
granted or upheld damages of six .figures or more (Schneider v Nat'l R.R. Passenger Corp., 987
F2d 132, 137-38 [2d Cir 1993] [affirming $1,750,000 verdict to victim of robbery and attempted
rape]; Doe v HRH Prince Abdulazii Bin Fahd Alsaud, Saudi Oger Ltd., 2017WL 4541426, **6-
7,2017 US Dist LEXIS 167359, **16,20 [SD NY, Oct. 10,2017, No. 13CV571] [awarding
$1,250,000 in compensatory damages and $1,000,000 in punitive damages]; Ortiz v New York
City Hous. Auth., 22 F Supp 2d 15, 38-40 [ED NY 1998], affd 198 F3d 234 [2d Cir 1999]
[holding that verdict of $3 million in compensatory damages is not excessive]; Breest v Haggis,
Sup Ct, NY County, Jan. 24, 2023, Kraus, J., indexNo. 161137/2017 [finding that $7.5 million
compensatory damages award is not excessive]). Accordingly, the Court finds that the jury's
award in this action did not materially deviate from reasonable compensation or is excessive.
The Court finds that Defendant failed to proffer adequate support to justify a reduction of
compensatory or punitive damages.12 Instead, there was sufficient evidence from which the jury
10 NYSCEF Doc No. 96, IT at 22:23-25; 22:25-23:2; 23:12-13; 27:19-22; 42:21-44:1.
II Jd., tr. 24:20-21; 27:4-5; 28:2; 23-25.
12 Defendant cites to five cases for the proposition that the amount of damages awarded here were excessive:
Deborah S. v Diorio, 153 Mise 2d 708 [Civ Ct, NY County 1992], ajJd as modified, 160 Mise 2d 210 (App Term
1st Dept 1994]; Laurie Marie M. v JejJrey TM., 159 AD2d 52 [2d Dept 1990], ajJd77 NY2d 981 [1991]; Micariv
Mann, 126 Mise 2d 422 [Sup Ct, NY County 1984]; Miller v State, 110 AD2d 627 [2d Dept 1985]; and OjJei v
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could base their awards. For these reasons, the Court finds that Defendant was not denied a fair
trial and his motion to vacate the verdict and grant Defendant judgment notwithstanding the
verdict under CPLR 4404(a) is denied.
The Court addresses Defendant's final argument for a collateral source hearing. Under
CPLR 4545, in an action for personal injury, "evidence shall be admissible for consideration by
the court to establish that any such past or future cost or expense was or will, with reasonable
certainty, be replaced or indemnified, in whole or in part, from any collateral source" (CPLR
4545 [a]). To be entitled to a collateral source hearing, Defendant must proffer "some competent
evidence from available sources" indicating that Plaintiffs economic losses have been or will be
paid from a collateral source (Firmes v Chase Manhattan Auto. Fin. Corp., 50 AD3d 18, 36 [2d
Dept 2008] [emphasis added]). This requires a finding by the Court that Plaintiff "is legally
entitled to the continued receipt of such collateral source" (CPLR 4545 [a] [emphasis added]).
Defendant avers that Plaintiff can procure medical insurance through the Affordable Care Act
(the "Act") to cover any future medical treatments. Defendant does not claim that Plaintiff had
coverage under the Act at the time of the rape or that she received benefits under the Act or any
other collateral source thereafter (see Liciaga v New York City Transit Authority, Sup Ct, Kings
County, Nov. 8,2019, Sweeney, K., index No. 513495/2016 [rejecting defendant's argument that
plaintiff is eligible to procure coverage under the Act and if coverage is procured, plaintiff would
be indemnified a substantial portion of future medical costs]). According to Defendant, Plaintiff
has a duty to mitigate damages and an insurance plan under the Act would be substantially less
Ornar, 2012 WL 2086294, 2012 US Dist LEXIS 80171 [SD NY May 18,2012, No. l1CIV4283 (SAS/MHD)],
report and recommendation adopted, 2012 WL 2086356, 2012 US Dist LEXIS 80144 [SD NY June 8, 2012, No.
lICIV4283]. Deborah s., Laurie Marie M, Miller and Offei were discussed in Doe v HRH Prince Abdulaziz Bin
FahdAlsaud, Saudi Oger Ltd. (2017 WL 4541426, 2017 US Dist LEXIS 167359 [SD NY, Oct. 10,2017, No.
13CV571]). Though the Southern District recognized that there is a "significant variation" in awards in sexual
assault cases, it still found that $1,250,000 in compensatory damages and $1,000,000 in punitive damages were
proper based on the evidence presented (2017 WL 4541426, at **6-7, 2017 U.S. Dist. LEXIS 167359, ** 15-16,20).
Thus, the Court finds Defendant's reliance on these cases unpersuasive. Moreover, the cases cited by Defendant are
distinguishable. In Deborah s., the plaintiff failed to present expert witness or evidence, thereby limiting the Court
in awarding any compensation for future pain and suffering (153 Misc 2d at 715-16). The plaintiff in Offei was
sexuaIly assaulted and not raped (2012 WL 2086294, * 1,2012 US Dist LEXIS 80171, **3-4). Though the court in
Miller increased an award of damages "[ c]onsidering the horror of the rape itself and the consequences that
foIlowed," there was no further discussion on the basis for that finding (110 AD2d at 628). Further, in Micari, the
plaintiffs conceded that no physical force was used or threatened in making them perform sexual acts, which did not
include penetration by the defendant (126 Misc 2d at 422-23). The court in Laurie Marie M found that $100,000 in
compensatory damages was reasonable, in part, because there was evidence that plaintiff was "functioning fairly
weIl" years after the sexual offenses and the court reduced the amount of punitive damages because the facts
"suggest that the defendant lacked [] malicious, evil motives" and recognized his wrongdoing" (159 AD2d at 57,60-
61).
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expenSIve than the cost of services and treatments and would prevent a potential double
recovery. CPLR 4545 does not require Plaintiff to obtain coverage through the Act (id.). The
Act's existence alone does not rise to the level of "some competent evidence" warranting a
collateral source hearing (Dowdy v Brooklyn Hasp. etr., 70 Misc 3d 1207[A] [Sup Ct, Kings
County 2020] [the fact that the Act "provides for universal availability of health insurance ... is .
insufficient to show entitlement" to a collateral source hearing]).
Accordingly, it is hereby
. ORDERED, that Defendant's motion is denied in its entirety.
All other issues not addressed herein are without merit or moot.
This constitutes the decision and order of the Court.
Hon. Ingrid J seph, J.S.C.
Hon. t . grid Joseph
Supreme Court Justice
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FILED: KINGS COUNTY CLERK 01/10/2024 04:09 PM INDEX NO. 509728/2014 NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 01/10/2024 At an lAS Term, Part 83 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the ~ day of~, 2024. PRE SEN T: HON. INGRID JOSEPH, J.S.c. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------------------------------------)( MAJA RUSZCZYK, Plaintiff, -against- Index No.: 50972812014 DAOUDA GAGARA DaSILVA a/k/a DAVID DaSILVA DECISION AND ORDER Defendant. -----------------------------------------------------------------------)( The following e-filed papers read herein: NYSCEF Doc. Nos.: Notice of Motion! Affirmation in Support/Memorandum of Law Exhibits : . 94-100 Affirmation in Opposition! . 101 Defendant Daouda Gagara DaSilva alk/a David DaSilva ("Defendant") moves (a) pursuant to CPLR 4401, for a directed verdict; or (b) alternatively, pursuant to CPLR 4404(a), for an order (i) vacating the verdict and granting Defendant judgment notwithstanding the verdict, or (ii) setting aside the jury's award and ordering a new trial on damages; and (c) pursuant to CPLR 4404 (a), for an order directing a collateral source hearing pursuant to CPLR 4404 (Mot. Seq. No.6). Plaintiff opposes the motion. This action arises out of a rape that occurred on December 16, 2012, which Plaintiff alleges was perpetrated by Defendant. The issue of liability was resolved in Plaintiff s favor after Defendant's answer was stricken (NYSCEF Doc No. 64).1 The matter proceeded to trial on damages, whereupon a jury awarded Plaintiff as follows: $1,750,000 for past pain and suffering; I See NY St Cts Elec Filing [NYSCEF] Doc NO.9, tr at 74: 10-12, 76: 13-21). "[A] defendant whose answer is stricken as a result of a default admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiffs conclusion as to damages" (Rokina Optical Co. v Camera King, Inc., 63 NY2d 728, 730 [1984], citing McClelland v Climax Hosiery Mills, 252 NY 347, 351 [1930)). 1 of 8 FILED: KINGS COUNTY CLERK 01/10/2024 04:09 PM INDEX NO. 509728/2014 NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 01/10/2024 $5,140 for past medical expenses; $1,200,000 for future pain and suffering; $50,000 for future medical expenses; and $1,216,012 for punitive damages? Defendant moves for a directed verdict on the grounds that Plaintiff did not meet her burden in'. establishing that she suffered any compensable damages for which Defendant is responsible. Defendant also moves for an order vacating the verdict and granting Defendant judgment notwithstanding the verdict on the grounds that (a) the evidence was insufficient to submit the issue of damages to the jury , (b) the Court committed error by (i) refusing to allow Defendant to testify and provide evidence directly contradicting Plaintiffs testimony and (ii) refusing to charge the jury on Aggravation of Pre-Existing Injury (PH 2:282) and instead charging Susceptibility to Injury (PH 2:283), and (c) Defendant was denied a fair trial. Alternatively, Defendant moves to set aside the jury's award as excessive and against the weight of the evidence. Finally, Defendant requests a collateral source hearing on the issue of medical expenses because the Affordable Care Act allows Plaintiff to procure health insurance, even with a pre-existing condition. In opposition, Plaintiff argues that Defendant has failed to proffer any argument in support of his contention that Plaintiff did not meet her burden of establishing any compensable damages. Further, Plaintiff contends that Defendant fail.ed to establish that the jury could not have reached its verdict on a fair interpretation of the evidence presented. With respect to the jury's award, Plaintiff alleges that it does not deviate materially from what has been awarded in comparable cases; thus, the award should stand. In addition, Plaintiff argues that the Court properly precluded Defendant's testimony because Defendant's counsel represented that he would not be calling any witnesses and Plaintiff did not have an opportunity to depose Defendant on the issue of damages prior to trial. As to the jury charge, Plaintiff claims that the Court properly charged Susceptibility to Injury because there was no evidence before the jury that Plaintiff had a pre-existing injury. Plaintiff also argues that a collateral source of payment must be plead as an affirmative defense, which Defendant failed to do. Plaintiff claims that even if Defendant had pled collateral source as an affirmative defense, Plaintiff argues that the mere existence of the Affordable Care Act is insufficient and Defendant has not proffered evidence to 2Per the verdict sheet, Plaintiff's awards for future pain and suffering and future medical expenses were intended to cover a period of 10 years and 20 years, respectively (NYSCEF Doc No. 93), 2 2 of 8 ------------------." FILED: KINGS COUNTY CLERK 01/10/2024 04:09 PM INDEX NO. 509728/2014 NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 01/10/2024 establish that Plaintiff's economic losses may have been, or in the future be, replaced, or that the Plaintiff was indemnified from, collateral sources. A defendant seeking a judgment as a matter of law under CPLR 4401 or 4404(a) has the "burden of establishing that there is no rational process by which the jury could find for the plaintiff against the moving defendant" (Broadie v St. Francis Hosp., 25 AD3d 745, 746 [2d Dept 2006] [internal citations omitted]). The Court must accept the plaintiff's evidence as true, and "the plaintiff is entitled to every favorable inference which can reasonably be drawn from the evidence" (id.). Though Defendant seeks a directed verdict under CPLR 440 I, the moving papers are devoid of any substantive argument or caselaw in support thereof. The papers merely state that Defendant is entitled to a directed verdict because "no triable issue of fact exists concerning Plaintiff having suffered: (a) pain and suffering and loss of enjoyment from life from 12/16/2012 to 6/27/2022; (b) past medical expenses from 12/16/2012 to 6/27/2022; (c) future pain and suffering and loss of enjoyment of life from the time of verdict to the time that the plaintiff is expected to live; (d) future medical expenses from the time of the verdict to the time that the plaintiff is expected to live; and, (e) that plaintiff is entitled to punitive .damages." Since Defendant has failed to meaningfully address the portion of his motion seeking a directed verdict, with either facts or case law, the Court finds that Defendant has failed to sustain his burden. Accordingly, Defendant's motion for a directed verdict is denied. The Court next turns to Defendant's request under CPLR 4404(a) to vacate the verdict and grant Defendant judgment notwithstanding the verdict. "In considering [a motion pursuant to CPLR 4404(a)], [t]he Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected and must look to his [or her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision" (Heubish v Baez, 178 AD3d 779, 780 [2d Dept 2019] [internal citations and quotation marks omitted]). With respect to Defendant's argument that the evidence was insufficient to submit the issue of damages to the jury, the Court again finds that Defendant failed to proffer any proof or legal argument to substantiate such claim. Defendant's further contention that the Court committed an error by precluding Defendant from testifying at trial and providing evidence,. which allegedly directly contradicted Plaintiff's testimony, is unavailing .. On or about February 3 3 of 8 FILED: KINGS COUNTY CLERK 01/10/2024 04:09 PM INDEX NO. 509728/2014 NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 01/10/2024 17, 2017, Justice Donald S. Kurtz issued an order granting Plaintiff's motion to strike Defendant's answer on default.3 Prior to the commencement of trial, Defendant's counsel represented that the defense would not call any witnesses.4 After the trial commenced, Defendant's counsel sought to c~ll Defendant as a witness. According to his counsel, Defendant had direct evidence that would contradict Plaintiff's testimony concerning her damages and should have been allowed to testify. The Court ruled that Defendant would not be allowed to testify, in part, because he had not been previously deposed and has no medical expertise that would have allowed him to rebut any medical or psychological testimony by Plaintiff's expert. The Court does not find that its preclusion of Defendant was erroneous for the following reasons. First, Defendant waited until the second day of trial to apprise the Court and Plaintiff that he wanted to testify, foreclosing on Plaintiff's ability to obtain discovery prior to. trial (Reynolds Sec., Inc. v Underwriters Bank & Tr. Co., 44 NY2d 568, 573 [1978] [holding that a defendant's default does not mean that "plaintiff is to be handicapped in the proof of its damages by defendant's prior defiance of orders, notices, or. subpoenas calling for his production of records or the taking of his deposition"]; Mahgoub v 880 Realty, LLC, 150 AD3d 1216, 1219 [2d Dept 2017] [a party is permitted to testify at trial if the other side is given the opportunity to conduct his deposition D. Second, during the trial, the Defendant made statements that encroached on the issue of liability in the presence of the jury. 5 Defendant also represented to the Court that he wanted to raise the issue of him not having raped Plaintiff during the damages portion of the tria1.6 The Court repeatedly explained to Defendant that his liability had already been determined by a prior judge and the case was sent to be tried only on the issue of damages.? Not once during Defendant's outbursts did he raise any argument relating to Plaintiff's damages. Third, Defendant has no medical expertise that would have allowed him to rebut the medical testimony of Plaintiff's expert Mr. Joe Preval, a licensed mental health therapist. Defendant claims that the Court committed an error by refusing to charge the jury on Aggravation of a Pre-Existing Injury. According to Defendant, a reasonable view of the evidence would support this charge. Defendant in general relies on the testimony of Mr. Preval regarding Plaintiff's mental status and the definition of post-traumatic stress disorder and 3 NYSCEF Doc No. 64. 4 NYSCEF Doc No. 97, tr at 59:23-24. sId., tr at 72:20-22 ("I can't have her pointing her finger at me saying 1 raped her. 1 didn't rape her"). 6 Jd., tr at 73 :25-74:2 ("I haven't raped her. I have proof, 1 have evidence and you are refusing me to admit it."). 7 Id., tr at 74:7-25,75:22-76:2. 4 4 of 8 FILED: KINGS COUNTY CLERK 01/10/2024 04:09 PM INDEX NO. 509728/2014 NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 01/10/2024 symptoms therefrom. The Court notes that Defendant did not cite to any specific testimony. Defendant essentially contends that with his testimony alone, a jury could find that Plaintiff, following her parents' death and her sister's abandonment, suffered from a pre-existing mental health injury. At trial, Plaintiffs expert Mr. Preval answered "No" when asked whether Plaintiff suffered from post-traumatic stress disorder, major depressive disorder, panic disorders and suicide ideations before the rape.s With respect to Plaintiffs prior losses, Mr. Preval testified that Plaintiff was "more susceptible," "more predisposed" and "vulnerable," but that "it wasn't the cause of all of [Plaintiffs] symptoms."9 Defendant did not proffer his own medical expert or any evidence that Plaintiff had been previously diagnosed with the same medical conditions. Thus, the Court finds that there was no evidence to warrant Aggravation of Pre-Existing Injury charge (see Medina v Chownwai, 211 AD2d 526, 527 [1st Dept 1995] [sufficient evidence to warrant charge of aggravation of preexisting injury, in part, where defendant's medical expert testified that plaintiff probably suffered from a chronic back condition); Kirschhoffer v Van Dyke, 173 AD2d 7, 9 [3d Dept 1991] [PH 2:282 charge is not warranted where there is no evidence a condition was anything but latent and asymptomatic or where the condition never manifested before accident]). The Court now turns to Defendant's claim that the jury's awards were excessive, speculative, inconsistent with other awards, and against the weight of the evidence. Since Defendant failed to provide any arguments in support of his contentions that the awards were speculative and against the weight of the evidence, the Court will only address his claims as to excessiveness. In a personal injury action, the question of damage-whether to award compensatory and punitive damages and the determination of the amount-is for the trier of fact (CPLR 5505 [c]; Graves v New York City Transit Auth., 81 AD3d 589 [2d Dept 2011]; Nardelli v Stamberg, 44 NY2d 500, 503 [1978] [internal citations omitted]). An award of compensatory damages will only be disturbed "if it deviates materially from what would be reasonable compensation" (Graves, 81 AD3d at 589). The amount of punitive damages awarded will only be reduced if "it is so grossly excessive as to show by its very exorbitancy that it was actuated by passion" (Nardelli, 44 NY2d at 504 [internal citations and quotation marks omitted]). Although courts may consider prior and similar awards, the amount of damages awarded in other cases are 8 Id., trat 101:10-15; 101:25-102:5. 9 Id., tr at 102:6-12. 5 5 of 8 FILED: KINGS COUNTY CLERK 01/10/2024 04:09 PM INDEX NO. 509728/2014 NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 01/10/2024 not binding (Senko v Fonda, 53 AD2d 638, 639 [2d Dept 1976] [internal citation omitted]). Some of the factors that a court "may consider and evaluate in assessing the appropriateness of an award of damages for a sexual assault are the social and emotional betrayal, humiliation and isolation suffered by the victim as well as the threat to the victim's self-esteem and physical, psychic and emotional integrity and health, in addition to actual therapeutic and medical expenses" (Mathie v Fries, 935 F Supp 1284, 1306 [ED NY 1996], affd 121 F3d 808 [2d Cir 1997] [internal quotation marks omitted]). In this case, Plaintiff testified extensively about how the Defendant's rape impacted, and continues to impact, different aspects of her life, evidence of which was supported by the expert testimony of Mr. Preval. Plaintiff testified that following the rape, she turned to alcohol and cutting to cope with her problems, struggled in school, attempted suicide, and experienced panic attacks.'o She further testified that to this day, she cannot, in part, (a) really trust anyone around her, especially males, (b) form healthy relationships with men, or (c) sleep on her side since she feels the presence of Defendant behind her. I'Where, as here; there is testimony of serious and long-lasting psychological and emotional trauma after a sexual assault or rape, courts have granted or upheld damages of six .figures or more (Schneider v Nat'l R.R. Passenger Corp., 987 F2d 132, 137-38 [2d Cir 1993] [affirming $1,750,000 verdict to victim of robbery and attempted rape]; Doe v HRH Prince Abdulazii Bin Fahd Alsaud, Saudi Oger Ltd., 2017WL 4541426, **6- 7,2017 US Dist LEXIS 167359, **16,20 [SD NY, Oct. 10,2017, No. 13CV571] [awarding $1,250,000 in compensatory damages and $1,000,000 in punitive damages]; Ortiz v New York City Hous. Auth., 22 F Supp 2d 15, 38-40 [ED NY 1998], affd 198 F3d 234 [2d Cir 1999] [holding that verdict of $3 million in compensatory damages is not excessive]; Breest v Haggis, Sup Ct, NY County, Jan. 24, 2023, Kraus, J., indexNo. 161137/2017 [finding that $7.5 million compensatory damages award is not excessive]). Accordingly, the Court finds that the jury's award in this action did not materially deviate from reasonable compensation or is excessive. The Court finds that Defendant failed to proffer adequate support to justify a reduction of compensatory or punitive damages.12 Instead, there was sufficient evidence from which the jury 10 NYSCEF Doc No. 96, IT at 22:23-25; 22:25-23:2; 23:12-13; 27:19-22; 42:21-44:1. II Jd., tr. 24:20-21; 27:4-5; 28:2; 23-25. 12 Defendant cites to five cases for the proposition that the amount of damages awarded here were excessive: Deborah S. v Diorio, 153 Mise 2d 708 [Civ Ct, NY County 1992], ajJd as modified, 160 Mise 2d 210 (App Term 1st Dept 1994]; Laurie Marie M. v JejJrey TM., 159 AD2d 52 [2d Dept 1990], ajJd77 NY2d 981 [1991]; Micariv Mann, 126 Mise 2d 422 [Sup Ct, NY County 1984]; Miller v State, 110 AD2d 627 [2d Dept 1985]; and OjJei v 6 6 of 8 _ ..__ . __ .. _-_._. -- -~- -""--- ---- ------------------~-_._- FILED: KINGS COUNTY CLERK 01/10/2024 04:09 PM INDEX NO. 509728/2014 NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 01/10/2024 could base their awards. For these reasons, the Court finds that Defendant was not denied a fair trial and his motion to vacate the verdict and grant Defendant judgment notwithstanding the verdict under CPLR 4404(a) is denied. The Court addresses Defendant's final argument for a collateral source hearing. Under CPLR 4545, in an action for personal injury, "evidence shall be admissible for consideration by the court to establish that any such past or future cost or expense was or will, with reasonable certainty, be replaced or indemnified, in whole or in part, from any collateral source" (CPLR 4545 [a]). To be entitled to a collateral source hearing, Defendant must proffer "some competent evidence from available sources" indicating that Plaintiffs economic losses have been or will be paid from a collateral source (Firmes v Chase Manhattan Auto. Fin. Corp., 50 AD3d 18, 36 [2d Dept 2008] [emphasis added]). This requires a finding by the Court that Plaintiff "is legally entitled to the continued receipt of such collateral source" (CPLR 4545 [a] [emphasis added]). Defendant avers that Plaintiff can procure medical insurance through the Affordable Care Act (the "Act") to cover any future medical treatments. Defendant does not claim that Plaintiff had coverage under the Act at the time of the rape or that she received benefits under the Act or any other collateral source thereafter (see Liciaga v New York City Transit Authority, Sup Ct, Kings County, Nov. 8,2019, Sweeney, K., index No. 513495/2016 [rejecting defendant's argument that plaintiff is eligible to procure coverage under the Act and if coverage is procured, plaintiff would be indemnified a substantial portion of future medical costs]). According to Defendant, Plaintiff has a duty to mitigate damages and an insurance plan under the Act would be substantially less Ornar, 2012 WL 2086294, 2012 US Dist LEXIS 80171 [SD NY May 18,2012, No. l1CIV4283 (SAS/MHD)], report and recommendation adopted, 2012 WL 2086356, 2012 US Dist LEXIS 80144 [SD NY June 8, 2012, No. lICIV4283]. Deborah s., Laurie Marie M, Miller and Offei were discussed in Doe v HRH Prince Abdulaziz Bin FahdAlsaud, Saudi Oger Ltd. (2017 WL 4541426, 2017 US Dist LEXIS 167359 [SD NY, Oct. 10,2017, No. 13CV571]). Though the Southern District recognized that there is a "significant variation" in awards in sexual assault cases, it still found that $1,250,000 in compensatory damages and $1,000,000 in punitive damages were proper based on the evidence presented (2017 WL 4541426, at **6-7, 2017 U.S. Dist. LEXIS 167359, ** 15-16,20). Thus, the Court finds Defendant's reliance on these cases unpersuasive. Moreover, the cases cited by Defendant are distinguishable. In Deborah s., the plaintiff failed to present expert witness or evidence, thereby limiting the Court in awarding any compensation for future pain and suffering (153 Misc 2d at 715-16). The plaintiff in Offei was sexuaIly assaulted and not raped (2012 WL 2086294, * 1,2012 US Dist LEXIS 80171, **3-4). Though the court in Miller increased an award of damages "[ c]onsidering the horror of the rape itself and the consequences that foIlowed," there was no further discussion on the basis for that finding (110 AD2d at 628). Further, in Micari, the plaintiffs conceded that no physical force was used or threatened in making them perform sexual acts, which did not include penetration by the defendant (126 Misc 2d at 422-23). The court in Laurie Marie M found that $100,000 in compensatory damages was reasonable, in part, because there was evidence that plaintiff was "functioning fairly weIl" years after the sexual offenses and the court reduced the amount of punitive damages because the facts "suggest that the defendant lacked [] malicious, evil motives" and recognized his wrongdoing" (159 AD2d at 57,60- 61). 7 7 of 8 FILED: KINGS COUNTY CLERK 01/10/2024 04:09 PM INDEX NO. 509728/2014 NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 01/10/2024 expenSIve than the cost of services and treatments and would prevent a potential double recovery. CPLR 4545 does not require Plaintiff to obtain coverage through the Act (id.). The Act's existence alone does not rise to the level of "some competent evidence" warranting a collateral source hearing (Dowdy v Brooklyn Hasp. etr., 70 Misc 3d 1207[A] [Sup Ct, Kings County 2020] [the fact that the Act "provides for universal availability of health insurance ... is . insufficient to show entitlement" to a collateral source hearing]). Accordingly, it is hereby . ORDERED, that Defendant's motion is denied in its entirety. All other issues not addressed herein are without merit or moot. This constitutes the decision and order of the Court. Hon. Ingrid J seph, J.S.C. Hon. t . grid Joseph Supreme Court Justice 8 8 of 8