Eves v Ray

[*1] Eves v Ray 2005 NY Slip Op 52018(U) [10 Misc 3d 1058(A)] Decided on December 5, 2005 Supreme Court, Suffolk County Austin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 5, 2005
Supreme Court, Suffolk County

William T. Eves, Jr., Plaintiff,

against

John Ray, Defendant



20770-99



COUNSEL FOR PLAINTIFF

Edward S. Raskin, Esq.

1550 Deer Park Avenue

Deer Park, New York 11729

COUNSEL FOR DEFENDANT

John Ray & Associates

Robert R. Meguin, Esq.

122 North Country Road

P.O. Box 5440

Miller Place, New York 11764

Leonard B. Austin, J.

INTRODUCTION

After a mistrial had been declared in the previous trial of this matter before Hon. Mary M. Werner, Justice Presiding, this matter was referred to this Court for trial which

commenced on November 29, 2004 and resulted in a jury verdict on December 10, 2004.

BACKGROUND

A.The Pleadings

The complaint herein alleged two causes of action against Defendant John Ray ("Ray"), an attorney. The first cause of action alleged that Ray filed a false criminal instrument alleging harassment in the second degree against Eves on April 29, 1998. Eves claimed that the allegations upon which the criminal instrument was based were false and perjured testimony . Ultimately, Eves was acquitted on that charge after trial.

At the time that the harassment in the second degree charge was filed, the District Court, Suffolk County issued an order of protection in favor of Ray and against Eves. However, since Eves was not present at the time of the arraignment, he was unaware of the issuance of that order of protection. As a result of an incident on July 13, 1998, Ray pressed charges against Eves alleging a violation of the order of protection which is criminal contempt in the second degree. Based upon Eves' lack of knowledge of the order of protection, the District Court dismissed the criminal complaint against him.

Thus, both causes of action claim damages against Ray as a result of these criminal charges which were resolved in Eves' favor allege malicious prosecution and false arrest.

In response, Ray generally denied the allegations of the complaint, interposed two affirmative defenses and pled a counterclaim sounding in intentional infliction of emotional distress.

The gravamen of Ray's counterclaim arose from various threats against Ray made by Eves during the course of various court appearances and interactions between the two during Ray's representation of Eves' former wife in this Court. In his answer, Ray sought damages in the sum of $27,300.00 as and for "emotional harm and trauma" along with "further damages continue (sic) to be suffered". In addition, Ray sought "damages per se" in the sum of at least $54,600.00. Thus, the total damages sought by way on his counterclaim totaled $81,900.00 along with punitive damages in the sum of $500,000.

B. The Evidence at Trial

The parties met for the first time at the courthouse in Central Islip, New York [*2]where, in a post-judgment matrimonial matter a writ of habeas corpus, Ray represented Eves' former wife.

The evidence demonstrated that, on April 29, 1998 at approximately 10:15 a.m. in or near the courtroom of Hon. James A. Gowan, Eves said to Ray, "I am going to hurt you. I am going to hurt you. You look worried and you should be." Thereafter, Eves and Ray exchanged epithets calling each other "scumbags".

Eves and his former wife had been involved in a very acrimonious matrimonial which commenced in approximately 1985. It was finally resolved in early 1998. The

testimony at trial suggested that it was Eves who prevented the case from being resolved.

Prior to appearing in the court, Ray interviewed his client and learned, among other things:

—Mrs. Eves was frightened of her former husband.

—Eves beat her and his son Billy.

Eves was a "gun nut".

—Eves was extremely dangerous to any man within her orbit.

Ray believed his client in this regard. Ray also became aware of the following incidents involving Eves:

—Eves had a physical confrontation with police officer Boyle in February or March of 1998 when Boyle was trying to arrest Eves. Eves strangled Boyle and bashed his head into a car. This was relayed to Ray by his client.

—A court officer and the assistant district attorney advised Ray that years earlier Eves confronted a District Attorney's investigator and assaulted him. Eves thereafter sued and settled an assault claim.

—Ray's client told him that Eves burned his boat for the insurance money. They watched the fire from their hot tub while Eves toasted the arson.

—Ray's client's boyfriend told Ray the Eves had threatened to punch his teeth to the back of his throat; that he lost his job at the Department of Labor due to Eves; and Eves stalked him.

Ray was aware of all of this when the initial confrontation with Eves occurred in Justice Gowan's courtroom and its environs.

Ray was also aware that, in the 1980's, Eves had a falling out with his prior attorney who, Eves believed, had committed malpractice. Ray learned that, in addition to filing a grievance against him, Eves picketed his office and stalked him. As a result, [*3]Eves was convicted of a violation. The testimony from both Plaintiff's and Defendant's witnesses demonstrated a knowledge of a history of violent and provocative acts on the part of Eves. The jury heard that Eve's former attorney no longer practices law and lives out of state.

The vast portion of the testimony the jury heard with regard to Eves' prior altercations and confrontational behavior was permitted with no objection from Plaintiff except that with each such revelation, Plaintiff sought a limiting or curative instruction to the jury that such testimony was hearsay and was being permitted, not for the truth of the statements, but to establish what Ray knew and his state of mind relating to the malicious prosecution cause of action and the counterclaim for intentional infliction of emotional distress. Examples of Eves' acquiescence in allowing such testimony are, as follows from Ray's direct examination:

Q.Did Mrs. Eves express to you her fear of Mr. Eves?

A.Oh, yes, she did indeed.

Q.What if anything, did she say to you on that subject?

A.Well, Mrs. Eves was or claimed to be deathly afraid of Mr. Eves. She indicated that he had beaten her a number of times very badly. She gave me photographs of an occasion when he did beat her up and photographs of when he beat his child Billy who was at that time 12 and beat his child badly, as well. She indicated that he was extremely dangerous, that he was especially dangerous to any man who came within her orbit so to speak, including Mr. Narolla who was then her boyfriend I think, and any male figure at all that came into contact with Judith Eves. He was a definite threat to as well as a definite threat to her. And it was a physical threat, not just psychological, but that he was a very seriously dangerous person.

Q.Did you believe those statements Mrs. Ebes told you?

A.Yes.

***

Q.Where did you obtain those photographs from?

A.Mrs. Eves gave me those photographs.

THE COURT: Let's have a side-bar please.

(Discussion held off the record.) THE COURT: By stipulation of the parties, the three photographs were put [*4]in evidence. However, we don't know when the photographs were taken and we don't know as to the truth of the allegations with regard to what they depicit. Again, not for the truth of them but rather for the state of mind of Mr. Ray coming into contact with them. Go ahead.

***

Q.But nevertheless, those photographs were received directly from Judith Eves; correct?

A.Yes, they were.

THE COURT: I agree. Are they in evidence? MR. MEGUIN: If I could, Judge, item J which is in evidence is the letter. Maybe if I could ask Mr. Ray to identify it, Defendant's J in evidence.MR. RASKIN: Your Honor, I have no problem with it with the limiting instructions.THE COURT: Again J and E are letters from third persons that discuss certain incidents. They are not being offered for the truth of the incidents that are being described in the letters, but rather that Mr. Ray was aware of them, and what if any affect it had on his state of mind.

Later that day, after Ray had attended to another matter before a different Judge in the courthouse, Ray and Eves again came face to face at an elevator in the courthouse. At that point, Eves stepped up to Ray, pointed a finger at him and said "I'm going to hurt you. I'm going to hurt you." Ray further testified that Eves' face was fierce or angry and that he was clear and determined as to his intentions. Ray testified that he had a real, deep sense of fear, anxiety and foreboding believing Eves could and would follow through with this threat.

Thereafter, upon returning to his car, in the courthouse parking lot, Eves again confronted Ray. Although Eves testified that his car being parked two vehicles away from that of Ray was a coincidence, he did not explain why he was still at the

courthouse building several hours after his appearance before Justice Gowan. Ray testified that Eves approached him and said, "You look worried. You should be." Ray recalled Eves' confrontations with his prior attorney and was extremely fearful for

himself, his family, his business and his office building. In the course of that confrontation, Eves drove his vehicle so as to block Ray.

From the courthouse, Ray went to the Suffolk County Police station in Brentwood and signed a criminal information against Eves. Thereafter, he returned to the District [*5]Court and appeared for the purpose of obtaining an ex parte temporary order of protection. Ray returned to his office at approximately 4:00 that afternoon and gave a copy of the temporary order of protection to all of his staff members, explaining what happened and what to do if they saw Eves.

Unbeknownst to Ray, Eves was never served with a copy of the temporary order of protection inasmuch as Eves entered a plea of not guilty with the Clerk of the District Court by his attorney.

As a result of the appearance before Justice Gowan on April 29, 1998, Eves and his former wife entered into a stipulation for custody and visitation. Mrs. Eves did not have visitation with her daughter, as she believed she was entitled pursuant to the stipulation, over the Memorial Day weekend. The reason proffered by Eves, the custodial parent, for refusing the visitation was that the transcript of the stipulation had not been "so ordered" by the court. Each party believed the other was having it done.

Nevertheless, Ray relied upon Justice Gowan's instruction to Eves to allow visitation as obviating the need for the so-ordering of the transcript. When the visitation did not take place, Ray, on behalf of his client, brought an application to hold Eves in contempt.

The contempt application was presented to Justice Gowan on July 13, 1998. Eves and his counsel were present. At that time, Ray and Eves had another encounter. While Ray was speaking with Eves' attorney, Eves approached Ray, in a loud voice and in an agitated manner, said, "Wait until you see what I'll do to your office." While standing before the court, Ray left his bowler hat on the seat in the public area of the courtroom. Eves sat on it.

Since the prior court appearance in April, 1998, Eves had been reported in the neighborhood of Ray's office even though he had no viable reason for being there.

As a result, Ray continued to fear and be anxious about Eves and his reputation for violently following through on his threats.

As a result of the conference with Ray and Eves' attorney, Justice Gowan granted Ray's order to show cause to hold Eves in contempt. With Eves there at the courthouse, Ray served the order to show cause. Eves responded by saying, "I'm going to picket your office." Eves' threats caused Ray further fear and concern.

Based upon the events on July 13, 1998, Ray contacted the Suffolk County Police to press charges against Eves claiming that he violated the temporary order of protection. Eves was arrested based on Ray's claim. The charge of criminal contempt

was dismissed upon learning that Eves had never been served with or given notice of the temporary order of protection.

As a result of the various encounters with Eves, and his knowledge of Eves'

threats and violent behavior, Ray was afraid for himself and his building, where he conducted his law practice.

Notwithstanding this fear, Ray did not seek medical or psychiatric attention at any time proximate to the incidents in 1998. In fact, the first time Ray consulted with a physician in September 2004 after the mistrial of this matter and before the second [*6]trial before this Court. Ray claimed that in reviewing the transcripts in anticipation of this trial he got very upset and relived the fears of six years before. He lost eight pounds, needed inhalants, developed psoriasis and returned to checking around his building.

At the conclusion of the trial, Plaintiff made no motions. Defendant moved for dismissal of the Plaintiff's case. Decision was reserved as to that motion. Neither side made an application to conform the pleadings to the proof.

C.The Jury's Verdict

A Jury Verdict Sheet was given to the jury with regard to the complaint and counterclaim. Although neither side objected to the verdict sheet, an error in the instructions was detected. Thus, before the verdict was rendered, an Amended Jury Verdict Sheet was given to the jury. This was done without objection.

With regard to Plaintiff's claim for malicious prosecution, five of the six members of the jury responded "yes" to the question, "Would a reasonably prudent person in like circumstances to defendant John Ray have reasonable cause to believe that William T. Eves committed the violation of Harassment in the Second Degree on April 29, 1998?" (Amended Jury Verdict Sheet Question 1)

Likewise, with regard to Eves' claim for false arrest, five of the six members of the jury responded "yes" to the question, "Would a reasonably prudent person in like circumstances to defendant John Ray have reasonable cause to believe that William T. Eves committed the crime of Criminal Contempt in the Second Degree on July 13, 1998?" (Amended Jury Verdict Sheet Question 4)

Thus, Eves did not prevail on either of his causes of action.

As to the counterclaim, the jury unanimously found that Eves intentionally caused Ray extreme emotional distress arising from his conduct during the period from April 29, 1998 to and including July 13, 1998 (Amended Jury Verdict Sheet Question 8) and awarded $300,000 as compensatory damages (Amended Jury Verdict Sheet Question 9). However, as to Amended Jury Verdict Sheet Question 9, the jury unanimously rejected Ray's entitlement to punitive damages.

D.The Pending Motions

In his motion, Eves seeks to set aside the jury's verdict with regard to the counterclaim and have a new trial, pursuant to CPLR 4404(a). In the alternative, Eves

seeks to modify and reduce the jury's award to $0.06 on the ground that the jury's award shocks the conscience of the Court, is excessive and is unsupported by the evidence adduced at trial.

Ray cross-moved pursuant to CPLR 3017(a) to amend the ad damnum clause of his answer so as to demand the sum of $300,000.

DISCUSSIONA. Defendant's Cross-Motion to Increase the Ad Damnum

Ray's answer contained one counterclaim alleging a cause of action for intentional infliction of emotional distress. In the counterclaim, Ray seeks damages for [*7]emotional harm and trauma in the sum of $27,300, damages "per se" in the sum of at least $54,600 and punitive damages in the sum of $500,000.

The jury awarded Ray compensatory damages in the sum of $300,000 and did not award him punitive damages.

Ray now moves to amend the ad damnum to the sum of $300,000, the amount awarded by the jury.

A motion to amend the ad damnum clause may be made at any time either before or after trial. CPLR 3025 (c); Loomis v. Civetta Corinno Construction Corp., 54 NY2d 18 (1981). See also, CPLR 3017 (a) which generally permits the amendment of an ad damnum clause. Such a motion should be granted in the absence of

demonstrable prejudice. Id. See also, Miller v. United Rentals Aerial Equipment, 303 AD2d 471 (2nd Dept. 2003).

"Prejudice may be found where a party has incurred some change in position or hindrance in the preparation of its case which could have been avoided had the original pleading contained the proposed amendment." Whalen v. Kawasaki Motors Corp., 92 NY2d 288, 293 (1998). See also, Valdes v. Marbrose Realty, Inc., 289 AD2d 28 (1st Dept. 2001). Prejudice does not exist simply because a party may be liable for a greater amount of damages. Loomis v. Civetta Corrinno Construction Corp., supra ; Abdelnabi v. New York City Transit Auth., 273 AD2d 114 (1st Dept. 2000); and Messina v. Portobello, 112 AD2d 923 (2nd Dept. 1985).

Eves has failed to argue that his defense to the counterclaim was hindered in any way or that he would have prepared his defense any differently had the ad damnum in the counterclaim been more substantial. Eves was aware from the very outset of this action that he could be subject to a rather substantial damage award since Ray sought punitive damages of $500,000.

Therefore, Ray's motion to amend the ad damnum should be granted.

B. Eves' Cross-Motion to Set Aside the Verdict

Eves moves to set aside the jury verdict as to both on liability and damages. He asserts that the proof offered at trial was insufficient to support the jury's finding.

CPLR 4404(a) permits the court to set aside a jury verdict and direct the entry of a verdict in favor of a party who is entitled to judgment as a matter of law or to order a new trial on the whole cause or on separable issues when the verdict is "...contrary to the weight of the evidence or in the interests of justice." Eves asserts that he is entitled to judgment as a matter of law because his conduct was not sufficiently outrageous so as to establish a prima facie case of intentional infliction of emotional distress.

In the event that the court finds that Eves proof was sufficient to establish a claim for intentional infliction of emotional distress, Eves asserts that the award of damages should be set aside as being contrary to the weight of the evidence.

In order to set aside a jury verdict as not being supported by sufficient evidence, [*8]there must be "no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reach by the jury on the basis of the evidence presented at trial." Cohen v. Hallmark Cards, 45 NY2d 493, 499 (1978). See also, Dominguez v. Manhattan and Bronx Surface Transit Operating Auth., 46 NY2d 528 (1979).

In order to reach the conclusion that the jury verdict should be set aside as not supported by sufficient evidence, the court must find that it should have directed a verdict in favor of the party seeking to set aside the jury verdict. Id., See also, Nicastro v. Park, 113 AD2d 129 (2nd Dept. 1985).

The question of whether a jury verdict should be set aside as being against the weight of the credible evidence is addressed to the discretion of the court and requires the court to balance many factors. Id. The court should not set aside a jury verdict as being against the weight of the credible evidence unless the evidence so preponderates in favor of that party against whom the jury found such that the jury could not have reached its conclusion on any fair interpretation of the evidence. Lallamand v. Cook, -A.D.3d- , 2005 WL 3117990 (2nd Dept. 2005); Aprea v. Franco, 292 AD2d 478 (2nd Dept. 2002); Walsh v. Morris, 88 AD2d 673 (3rd Dept. 1982); and O'Boyle v. Avis Rent-A-Car System, Inc., 78 AD2d 431 (2nd Dept. 1981).

Unless there are indications that substantial justice has not been done, the prevailing party "...is entitled to the benefit of a favorable jury verdict." Nicastro v. Park, supra at 133. See also, Schray v. Amerada Hess Corp., 297 AD2d 339 (2nd Dept. 2002). Great deference should be given to the fact-finding function of the jury. Filipowich v. Tavano, -A.D.3d-, 2005 WL 3118060 (2nd Dept. 2005); and Williams v. Pelican Pest Control, Inc., 11 AD3d 454 (2nd Dept. 2004), app. den., 4 NY3d 707 (2005). A trial judge should not "...interfere with the fact-finding function of the jury to the degree that amounts to an usurpation of the jury's duty." Ellis v. Hoelzel, 57 AD2d 968, 969 (3rd Dept. 1977). See also, McDermott v. Coffee Beanery, Ltd., 9 AD3d 195 (1st Dept. 2004); O'Brien v. Barretta, 1 AD3d 330 (2nd Dept. 2003); and Durante v. Frishling, 81 AD2d 631 (2nd Dept. 1981).

1.As to Liability

Eves asserts that the evidence in this case is so insufficient and inadequate that the jury could not have rationally found in favor of Ray on the his counterclaim for intentional infliction of emotional distress. In this regard, Eves asks the Court to set aside the jury verdict and dismiss the counterclaim.

In order to establish a cause of action for intentional infliction of emotional distress, Ray had to prove the Eves' conduct was "...so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Fischer v. Maloney, 43 NY2d 553 (1978), quoting Restatement [Second] of Torts § 46[1], comment d. See, Friehofer v. Hearst Corp., 65 NY2d 135 (1985); and Mazzacone v. Corlies Assocs., 21 [*9]AD3d 1066 (2nd Dept. 2005).

Eves' argument seeks to compartmentalize his conduct and activities. When taken individually, each of Eves' actions may be viewed as crude or boorish behavior insufficient to support the jury's finding. However, Eves conduct must be viewed in its totality and coupled with Ray's knowledge that, in the past, Eves had made good on his threats of violence and displayed an unrelenting vengeful streak. In context to, the evidence of Eves' conduct, in its totality, allowed the jury to reasonably find in favor of Ray's claim for intentional infliction of emotional distress.

Ray represented Eves' former wife in connection with a post-judgment child custody and visitation matter. On April 29, 1998, Mrs. Eves' writ of habeas corpus came on before Justice Gowan. The only reason Eves had for being in court that day was to appear before Justice Gowan in connection with the custody and visitation matter. After finishing before Justice Gowan, Ray had to appear on behalf of other clients in other parts of the court. Eves remained in court for an unreasonably long time after his appearance before Justice Gowan and for no benign or reasonable reason. He followed Ray to the same elevator bank and confronted and threatened Ray.

Eves then followed Ray into the parking lot and approached Ray and said, "You look worried. You should be." After confronting Ray in the parking lot, Eves went to his car and moved it to a position perpendicular to Ray's car so as to block Ray in his parking space and again threatened him.

This conduct coupled with Eves' statements must be viewed in the context of what Ray already knew about Eves based upon his representation of Eves' ex-wife. Ray had been told Mrs. Eves was afraid of her ex-husband, he had beaten her and one of their children; that Eves was a "gun nut", and that he was dangerous to any man who had a relationship with the former Mrs. Eves. Ray also believed that Eves had been involved in an altercation with a police officer who had tried to arrest Eves and several years earlier had assaulted an investigator from the District Attorney's office. Eves

admitted this confrontation but had an explanation for it. Mrs. Eves told Ray that her ex-husband had burned his boat to get insurance money. She also told Ray that Eves had threatened her boyfriend, caused him to lose his job and stalked him.

Ray was also aware that Eves had filed a grievance against his prior attorney who Eves believed had committed malpractice. However, Eves did not stop there. He picketed his former attorney's office and stalked and harassed him to the point that he left the practice of law and New York State. Eves was convicted of a violation associated with his behavior toward his former attorney.

Given this background, Ray was sufficiently afraid that he obtained an ex parte order of protection notwithstanding it having not been served on Eves.

After this incident, Ray saw Eves in the general vicinity of his office even though Eves had no reason for being in that area. As to this, Eves claimed that his presence [*10]there was that he was on his way to work.

Thereafter, on July 13, 1998, Ray was confronted by Eves at a court appearance before Justice Gowan. While Ray was speaking with Eves' attorney, Eves approached Ray and threatened him. While Ray was standing before the Court, Eves sat on Ray's hat. Eves then stated that he was going to picket Ray's office and destroy his practice.

Ray felt sufficiently threatened that, based upon these actions, he requested that the Suffolk County Police Department arrest Eves for violating the order of protection.

Only after Eves was arrested did Ray learn that the order of protection had never been served upon Eves.

Intentional infliction of emotional distress "...imposes liability based upon the after-the-fact judgments about the actors behavior." Howell v. New York Post Co., Inc., 81 NY2d 115, 122 (1993). When viewed under this standard, and in their totality, Eves' confrontational behavior and activities are sufficient to support the jury's finding. A jury could properly have found from the evidence presented that Eves engaged in these actions with the intent of scaring and/or intimidating Ray. Repeated efforts to scare and/or intimidate an individual, coupled with stalking that individual and threatening to destroy that person's business, constitutes conduct sufficiently outrageous as to be intolerable in a civilized society. See, Vasarhelyi v. New School for Social Research, 230 AD2d 658 (1st Dept. 1996); and Stram v. Farrell, 223 AD2d 260 (3rd Dept. 1996). Certainly, based on the evidence, the jury reasonably was able to make such a finding. In so doing, the jury clearly found Ray's version of the events to

be more credible than Eves. Therefore, Eves motion to set aside the liability verdict as not being supported by sufficient evidence must be denied.

2.As to Damages

Eves also moves to set aside the jury's damage award on the grounds that it materially deviates from what would be reasonable compensation under the circumstances. While the issue of damages sustained by Ray as a result of Eves'

conduct is primarily a question for the jury, the court may set the verdict aside if the amount awarded by the jury materially deviates from what would be reasonable compensation. Pitera v. Winzer, 18 AD3d 457 (2nd Dept. 2005); Miller v. Weisel, 15 AD3d 458 (2nd Dept. 2005); and Iovine v. City of New York, 286 AD2d 372 (2nd Dept. 2001). If the court finds that the jury verdict materially deviates from what is fair and reasonable compensation, the court should "...direct a new trial unless the parties stipulated to an appropriate additur or remittitur, or both (see, Siegel, NY Prac § 407, at 616-617 [2d ed])." Fischl v. Carbone, 199 AD2d 463, 464 (2nd Dept. 1993).

Since awards for non-economic loss cannot be precisely quantified, "...examination of comparable cases is necessary to determine whether the award materially deviated from reasonable compensation. Karney v. Arnot-Ogden Memorial Hosp., 251 AD2d 780 (3rd Dept.), mod. on rearg. 688 NYS2d 923 (n.o.r.) (3rd Dept.), lv. to app. dism., 92 NY2d 942 (1998). See also, Murakami v. Machinist, 3 AD3d 336 (1st [*11]Dept. 2004); and Donlon v. City of New York, 284 AD2d 13 (1st Dept. 2001).

While testimony of pain is sufficient to establish an entitlement to some compensation, in order to sustain a substantial award, plaintiff must demonstrate that the injury was more than minimal. Laurie Marie M. v. Jeffrey T. M., 159 AD2d 52 (2nd Dept. 1990), aff'd., 77 NY2d 981 (1991). See also, Levine v. Abergel, 127 AD2d 822 (2nd Dept. 1987).

In this case, Ray testified that he was afraid for himself and the office building in which his practice was located. He was so concerned for his safety that he sought and obtained an ex parte temporary order of protection. He gave a copy of that order to all of his office staff, explained to them what had happened and gave them instructions on what to do if they saw Eves. Ray said his fear returned when he was preparing for the trial causing him to lose eight pounds. He further testified that preparation for the trial aggravated his psorisis and caused him to use inhalers. Despite this, Ray did not seek or receive any medical treatment or psychological counseling nor did he introduce medical testimony or testimony from a mental health professional at trial.

In view of the lack of medical evidence, this Court finds the damage award materially deviates from what would be fair and just compensation. The award is set aside and a new trial must be ordered on the issue of damages unless, within 30 days of the date of this order, Defendant, John Ray files a written consent with the County Clerk of Suffolk County agreeing to a decrease in the verdict amount to the sum of $50,000. See, Rohrs v. Rohrs, 17 AD3d 659 (2nd Dept. 2005) (a verdict of $50,000 for malicious prosecution was reduced to $25,000); Lynch v. County of Nassau, 278 AD2d 205 (2nd Dept. 2000) (a verdict of $75,000 for intentional infliction of emotional distress was reduced from $75,000 to $25,000); and Loeb v. Teitlebaum, 77 AD2d 92 (2nd Dept. 1980), amended, 80 AD2d 838 (2nd Dept. 1981)(a verdict of $150,000 for malicious prosecution for one plaintiff was reduced to $50,000 by the trial court and to

$17,500 by the Appellate Division and a verdict of $100,000 for the other plaintiff was reduced to $35,000 by the trial court and to $15,750 by the Appellate Division). Upon retrial, a jury awarded the second plaintiff compensatory damages of $20,000. See, Loeb v. Teitlebaum, 112 Misc 2d 1039 (Civ. Ct., Kings Co., 1982).

It is the Court's belief that the sum awarded hereby reasonably compensates Defendant for the distress suffered as a result of the demonstrated, outrageous conduct of Plaintiff.

Accordingly, it is,

ORDERED, that the Defendant's cross-motion to amend the ad damnum of the counterclaim to $300,000 is granted; and it is further,

ORDERED, that Plaintiff's motion to set aside the verdict as not being supported by the evidence is denied; and it is further,

ORDERED, that Plaintiff's motion to set aside the verdict on damages is granted to the extent that a new trial is ordered on the issue of damages, unless Defendant files [*12]with the County Clerk of Suffolk County, within 30 days of the date of this order, a consent indicating that he agrees to the reduction of the award of damages from

$300,000 to $50,000. In the event, Defendant fails or refuses to do so, this matter is set down for a conference with both counsel on January 20, 2006 at 10:30 a.m.

This constitutes the decision and order of this Court.

Dated: Mineola, NY _____________________________

December 5, 2005 Hon. LEONARD B. AUSTIN, J.S.C.