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Desa v. City of New York

188 A.D.2d 313 Court N.Y. App. Div. Decision date 1992-12-03 English

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p. 313
Marcello Desa, Respondent-Appellant, v City of New York, Appellant-Respondent.

Judgment, Supreme Court, Bronx County (Bertram Katz, J.), rendered December 23,1991, upon a jury verdict, in favor of plaintiff against defendant, resulting in an award, as reduced by the court’s post-trial order entered June 11, 1991 and as stipulated to by plaintiff, of $2,845,000, unanimously affirmed, without costs.

Contrary to defendant’s contention, plaintiff established a

p. 314
prima facie case that the City’s off duty police officer was acting within the scope of his employment at the time of the shooting (see, Collins v City of New York, 11 Misc 2d 76 , affd 8 AD2d 613 , affd 7 NY2d 822 ). The jury’s determination that the officer acted negligently in cleaning his revolver, leading to the accidental shooting is supported by the record (see, Cohen v Hallmark Cards, 45 NY2d 493 ), and thus the jury’s finding of liability will not be disturbed. Any error by the trial court in sustaining plaintiff’s objection to the City’s introduction in evidence of a police report concerning an interview had with plaintiff three months after the shooting was harmless since the detective who prepared and filed the report testified at trial concerning the statements plaintiff made during the interview and stated that his testimony on the matter did not vary significantly from the content of the report (see, Mashley v Kerr, 63 AD2d 1084 , affd 47 NY2d 892 ).

Finally, the IAS Court did not abuse its discretion in, inter alia, modifying that portion of the jury’s award for future pain and suffering by ordering a new trial on the issue of future pain and suffering unless plaintiff stipulated to a reduction of the $5 million award to $1 million. Since plaintiff stipulated to the entry of the reduced award, the cross appeal must be dismissed (CPLR 5511; Rumph v Gotham Ford, 44 AD2d 792 , 792-793, lv denied 34 NY2d 519 , appeal dismissed 34 NY2d 952 ). However, the matter is reviewable on appeal pursuant to defendant City’s appeal from the judgment (CPLR 5501 [a] [5]; supra, at 793). Concur — Sullivan, J. P., Milonas, Wallach, Ross and Asch, JJ.

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