DECISION AND ORDER This is an inquest on damages in a personal injury and wrongful death action in which the Court previously made a finding of liability following a motion for partial summary judgment upon defendant’s default.1 In this posture defendant is “deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them” (Woodson v. Mendon Leasing Corp., 100 NY2d 62, 71 [2003]; accord Nationstar Mtge., LLC v. Hilpertshauser, 156 AD3d 1052 [2017]; Matter of Dyno v. Rose, 260 AD2d 694, 697 [1999], appeal dismissed 93 NY2d 998 [1999], lv denied 94 NY2d 753 [1999]). The Court has also received in evidence and carefully reviewed Court Exhibit 1 which includes Exhibits “A” and “B,” and Court Exhibit 2 which includes Exhibits “C” and “D.” The parties also appeared virtually on November 19, 2020 and provided testimony. On March 6, 2016, a healthy daughter was born to the parties. On March 28, 2016, the infant suffered profound injuries at the hands of defendant — her father- and on March 30, 2016 her short life ended. On October 17, 2016, defendant entered a plea of guilty to the Class B felony of Manslaughter in the First Degree in violation of Penal Law §125.20 (4), and was sentenced shortly thereafter as a second felony offender to a determinate sentence of twenty-five years followed by five years of post-release supervision. Defendant waived his right to appeal the conviction and there has been no perfection of an appeal. The sordid facts concerning this brutal assault of a 22-day-old child include defendant’s admissions during his police interrogation that when his daughter would not stop crying he held her upside down by her ankles and threw her into a nearby couch where her head struck a wooden edge — also admitting that something similar had happened “a couple weeks ago,” as is corroborated by evidence of older bruising. The record on this inquest includes medical findings of “multiple left rib fractures and a right clavicle fracture” and “multiple bony thorax fractures [together with] multiple low abdominal bruising [and] bruising on the inferior angle of the body of the mandible bilaterally [and] some faint linear bruising and discoloration around the interior and lateral folds of the neck.” There is also medical evidence of a “severely swollen brain” and fractures of the right distal femur. This record includes an expert medical opinion that the infant suffered significant pain and suffering until her sedation and, further, that “it is a recognized medical and neurological postulate in pediatric neurology that this infant was capable of feeling pain.” Defendant has not questioned reliability of this opinion and neither does this Court (see generally McDougald v. Garber, 73 NY2d 246 [1989]). Evidence of the earlier injuries supports a finding that some level of cognitive awareness of pain persisted for at least two weeks prior to death. There is also no question that defendant’s conduct was the sole proximate cause of the infant’s pain, suffering, and her fatal injuries. The complaint, in the first two causes of action, seeks damages for the wrongful death of the infant, and the third for the infant’s conscious pain and suffering. The fourth cause of action seeks damages on behalf of the mother, individually, for defendant’s negligent and reckless infliction of emotional injury to her. Punitive damages are also sought. These categories of damages are discussed ad seriatim. Wrongful Death New York’s wrongful death statute is codified in EPTL 5-4.3 (a), which provides that “damages awarded to the plaintiff may be such sum as the jury or, where issues of fact are tried without a jury, the court or referee deems to be fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the persons for whose benefit the action is brought.” As the statute indicates, the decedent’s distributees may recover only for the pecuniary loss sustained as a result of the decedent’s death and New York courts have been strict in their construction of this limitation, denying recovery for any loss that cannot be measured in economic terms. This rule, the law in this state since 1847, is deservedly criticized: recovery may not be had for “grief, and loss of society, Affection and conjugal fellowship” (Liff v. Schildkrout, 49 NY2d 622, 633 [1980]). How then to reconcile the Court of Appeals holding that in “any wrongful death action, especially one involving a child of tender years, the absence of dollars and cents proof of pecuniary loss does not relegate the distributees to recovery of nominal damages only” (Parilis v. Feinstein, 49 NY2d 984 [1980]). In Parilis v. Feinstein (supra), the Court of Appeals determined that the proof regarding the character and condition of the 12-year-old decedent and the circumstances of his distributees warranted a $50,000.00 award (id. at 985-986). That was 40 years ago. Here, there is no proof of the character and condition of this less than 1-month-old child and no evidence, in any obvious way, to establish pecuniary injuries from the death. In Delosovic v. City of New York (143 Misc 2d 801 [Sup Ct, NY County 1989], affd 174 AD2d 407 [1991]), the trial court — contending with the deaths of 2- and 5-year old children and no evidence that would establish pecuniary injury for their loss — observed as follows: “In Frohlick v. Columbia Wrecking Corp. (NYLJ., Feb. 9, 1984, at 12, col 3 [Sup Ct, Bronx County]), former State Administrative Judge Rosenblatt analyzed 14 appellate decisions involving wrongful deaths of children under [10] years of age and found no verdict sustained in excess of $40,000. In that case, which involved the death of a [7-year-old], Justice Rosenblatt reduced a $250,000 verdict to $60,000. “Subsequently in Cassar v. Central Hudson Gas & Elec. Corp. (134 AD2d 672 [3rd Dept 1987]) an award of $100,000 for the wrongful death of a [10year-old] was sustained. In Regan v. Long Is. R.R. Co. (128 AD2d 511 [2d Dept 1987]), a verdict for the wrongful death of a 15-year-old was reduced to $100,000. Generally the younger the decedent the lower the amount that is upheld. Although I have found no case where an award for the death of a child of the ages involved here (2 and 5) has reached $100,000, I believe that in light of recent inflation, a verdict in that sum for each child is sustainable” (Delosovic v. City of New York, 143 Misc 2d at 814). Next, in Raucci v. Town of Rotterdam (902 F 2d 1050 [1990]), a wrongful death award of $250,000.00 for the death of a 6-year-old son was found “shockingly excessive as a matter of New York law,” and the matter was “remand[ed] for a new trial on the issue of the amount of…damages unless plaintiff agree[d] to remit all of the…damages in excess of $100,000″ (id. at 1059). In Meredith v. City of New York (220 AD2d d 563 [1995]) — where the decedent was only 4 years old — an award of $250,000.00 was found to deviate materially from what would be reasonable compensation while the sum of $125,000.00 for the death was not. Finally, in Guariglia v. Price Chopper Operating Co. (38 AD3d 1043 [3d Dept 2007], lv denied 9 NY3d 801 [2007]) the death of a 2-year-old resulted in an undisturbed trial judgment of $75,000.00 (see Brief for Defendant-Appellant William J. Schady, III, available at 2006 WL 4937338, *3). With the foregoing considerations at hand, and finding that the first and second causes of action are duplicative, this Court hereby awards $75,000.00 for the wrongful death claim. Conscious Pain and Suffering The survivorship statute is codified in EPTL 11-3.3 (a), which provides that “[w]here an injury causes the death of a person the damages recoverable for such injury are limited to those accruing before death and shall not include damages for or by reason of death.” Having already established that the infant had some level of cognitive awareness of pain that continued for two weeks prior to her death, the question presented is what comes closest to the acceptable legal fiction of fair and reasonable compensation for nonpecuniary damages such as these (see generally Howard v. Lecher, 42 NY2d 109 [1977]). In DeLong v. Erie County (89 AD2d 376 [1982]) an award of $200,000.00 for conscious paid and suffering of the victim of a brutal beating and stabbing who lingered for 12 minutes was not excessive (see id. at 385). Regan v. Long Island R.R. Co. (supra) concerned a 15-year-old boy who suffered electrical burns over 75 percent of his body following electrocution caused by contact with 33,000 volts of electricity. He lived 5 days after his injury and the court awarded pain and suffering damages in the amount of $275,000.00 (see id. at 512). These damages were not considered excessive (id.). In Ramos v. La Montana Moving & Stor. (247 AD2d 333 [1998]), plaintiff endured conscious pain and suffering during the 15 to 30 minutes he lived after sustaining severe, crushing injuries when he was run over by a tractor trailer. The nonpecuniary damages resulted in a $250,000.00 verdict which the appellate court increased to $900,000.00 (see id. at 333-334). Givens v. Rochester City School Dist. (294 AD2d 898 [2002]) involved a stabbing victim who, within five minutes of her attack, collapsed and lost consciousness. An hour later she was pronounced dead. A verdict of $1 million was found excessive and led to remittal for a new trial unless the parties stipulated to an award of $300,000.00 (see id. at 899). This is followed by Cramer v. Benedictine Hosp. (301 AD2d 924 [2003]) (hereinafter Cramer), a medical malpractice action in which a $1 million verdict was found excessive and reduced to $350,000.00 where the period of pain and suffering was limited to six days (see id. at 930). In Cramer the court also reiterated long standing jurisprudence that “‘[t]he 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’” (id. at 930, quoting Simeon v. Urrey, 278 AD2d 624, 624 [2000]; see CPLR 5501 [c]). In Cepeda v. New York City Health & Hosps. Corp. (303 AD2d 173 [2003]), an award of $750,000.00 for an infant’s conscious pain and suffering in the 12 days between birth and death was reduced by the trial court “on the rationale that, as a newborn, the decedent could not have had any cognitive awareness of her impending death” (id. at 173). The appellate court, however, restored the verdict, observing that “while ‘some level’ of cognitive awareness is a prerequisite to recovery for loss of enjoyment of life, the factfinder is not required ‘to sort out varying degrees of cognition and determine at what level a particular deprivation can be fully appreciated.’ Thus, given the evidence of the decedent’s consciousness for most of her short life, we find the trial court’s reduction of the jury’s verdict excessive” (id., quoting McDougald v. Garber, 73 NY2d 246, 255 [1989]). In Hoehmann v. Siebkin (38 AD3d 839 [2007]), a medical malpractice action involving 9 days between onset of the pain with an initial diagnosis of pneumonia, followed by a subsequent inflammation of the entire colon together with its massive distension leading to systemic toxicity, multiple organ failure, and death, $750,000.00 was awarded for conscious pain and suffering. This award was then reduced to $525,000.00 (see id. at 840). In Launders v. Steinberg (39 AD3d 57 [2007], affirmed as modified 9 NY3d 930 [2007]), the administratrix of a murder victim’s estate brought an action to recover for the victim’s pain and suffering. The 6-year-old child was the daughter of the defendant and the evidence established eight hours of pain and suffering which resulted in a $5 million bench trial verdict. This was affirmed (see id. at 64). Finally, in Gersten v. Boos (57 AD3d 475 [2008]), the court reduced a $1 million verdict in favor of a pedestrian who later died of injuries sustained in an automobile accident where he was “conscious for at least some period of time” (id. at 477). The accident took place on March 31, 2004 and death followed two weeks later (see Brief of Plaintiffs-Respondents, available at 2008 WL 5509518, *1). The matter was remitted for a new trial on damages unless plaintiffs stipulated to reduce the verdict to $350,000.00 (see Gersten v. Boos, 57 AD3d at 477 [2008]). This Court finds with the authority of the foregoing survey, together with the medical and other evidence before it, that $1 million for two weeks of conscious pain and suffering is appropriate. This finding is viewed through the lens of the last four decades — with some considerations for inflation — and is well “within the boundaries set by case law” (Launders v. Steinberg, 39 AD3d at 59). Emotional Distress To the extent that plaintiff is seeking to recover for the emotional distress she experienced as a bystander witnessing the death of her daughter, she cannot succeed because she was not in the “zone of danger” created by defendant and did not witness the attacks (see Coleson v. City of New York, 24 NY3d 476, 483-484 [2014]; Bovsun v. Sanperi, 61 NY2d 219, 230-231 [1984]; Marcial v. Maldonado, 288 AD2d 357, 358 [2001]; Saguid v. Kingston Hosp., 213 AD2d 770, 772 [1995], app dismissed 87 NY2d 861 [1995], lv dismissed 88 NY2d 868 [1996]; Zea v. Kolb, 204 AD2d 1019, 1019-1020 [1994], lv dismissed 84 NY2d 864 [1994]; Arroyo v. New York City Health & Hosps. Corp., 163 AD2d 9, 9 [1990]). Insofar as plaintiff is seeking to recover for emotional distress — not as a bystander but as a victim herself — then to succeed in establishing a cause of action for negligent infliction of emotional distress, she must “show a breach of a duty owed to her” (Graber v. Bachman, 27 AD3d 986, 987 [2006]). That being said, in Anonymous B. v. Anonymous R. (37 Misc 3d 756 [Sup Ct, Madison County 2012]), the Court expressly held that “[a] parent’s obligation in raising a child is owed to the child, not to the other parent” (id. at 761). Accordingly, any duty owed by defendant was to his daughter and not to plaintiff. As such, she cannot recover for negligent infliction of emotional distress. To succeed in establishing a cause of action for intentional infliction of emotional distress, plaintiff must establish: (1) extreme and outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal connection between the conduct and the injury, and (4) severe emotional distress (see Howell v. New York Post Co., 81 NY2d 115, 121 [1993]). The threshold inquiry for a finding that conduct is “extreme and outrageous” enough to constitute intentional infliction of emotional distress is well defined. Specifically, “the alleged conduct must be ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency…and [be] utterly intolerable in a civilized [society]‘” (Hyman v. Schwartz, 127 AD3d 1281, 1284 [2015], quoting Murphy v. American Home Prods. Corp., 58 NY2d 293, 303 [1983] [internal quotation marks and citations omitted]; accord Loch Sheldrake Beach & Tennis Inc. v. Akulich, 141 AD3d 809, 814 [2016], lv dismissed 28 NY3d 1104 [2016]; Cusimano v. United Health Servs. Hosps., Inc., 91 AD3d 1149, 1152 [2012], lv denied 19 NY3d 801 [2012]). “Nonpecuniary damages, the key component in the tort of intentional infliction of emotional distress, are, by their nature, not susceptible to mathematical computation” (Laurie Marie M. v. Jeffrey T.M., 159 AD2d 52, 56 [1990], quoting McDougald v. Garber, 73 NY2d 246, 257 [1989]). A plaintiff’s subjective testimony of pain is sufficient to establish an injury for which she is entitled to compensation, but the proof must satisfactorily establish that the injury is more than minimal (see Laurie Marie M. v. Jeffrey T.M., 159 AD2d at 56; Levine v. Abergel, 127 A.D2d 822, 824 [1987]; Frady v. State of New York, 19 AD2d 783, 783 [1963]). Moreover, the “existence of severe emotional distress and proximate cause may be inferred…without expert medical opinion where…plaintiff has testified as to her emotional condition” (Murphy v. Murphy, 109 AD2d 965, 966 [1985]). Here, that graphic testimony includes the following: “On the morning of March 30 [my daughter's] oxygen dropped again and I had the worst feeling in my stomach. I knew it was probably going to be the last day I’d get to spend with my baby…. The nurse at the hospital brought me in a rocking chair so I could hold her one last time and let her know how loved she was. They took out her IVs and took off most of the wires as they put her in my arms. I rocked her back and forth while we listened to lullabies. While I was touching her sweet little face with tears in my eyes, I looked up on the monitor and everything was at zero. She had passed away. I couldn’t let her go, I didn’t want to. She was the most important thing in my life, she was everything to me and I couldn’t believe she was gone. “The day [she] passed away, I not only lost my daughter, but I lost huge pieces of myself. Because of [defendant], I am able to sit every day and stare at an urn with [her] ashes resting inside and be reminded of everything she had been through, everything [defendant] put me…through, everything that was, everything that could have been and everything that will never be.” Suffice it to say that any expert testimony addressing the pain and suffering associated with such obvious emotional distress is unnecessary. Not only would it be cumulative, the comprehension of such distress is palpable and not outside the acquaintance of this factfinder. Defendant’s conduct fits within the rule that “[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress” (Restatement [Second] of Torts §46 [1]; see Fischer v. Maloney, 43 NY2d 553, 557 [1978]). Notably, it has also been held that general and special damages need not even be pleaded or shown to make out a cause of action sounding in intentional infliction of emotional distress (see Halperin v. Salvan, 117 AD2d 544, 547 [1986]; PJI 3:6). This Court finds that the evidence presented demonstrates (1) extreme and outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal connection between the conduct and the injury and, without question, (4) severe and substantial emotional distress (see Howell v. New York Post Co., 81 NY2d at 121). The compensatory damages awarded for this injury are $250,000.00 Punitive Damages “Punitive damages may only be awarded for exceptional misconduct which transgresses mere negligence, as when the wrongdoer has acted maliciously, wantonly, or with a recklessness that betokens an improper motive or vindictiveness or has engaged in outrageous or oppressive intentional misconduct or with reckless or wanton disregard of safety or rights” (Kopec v. Hempstead Gardens, Inc., 264 AD2d 714, 716 [1999]). Defendant, by his plea of guilty to harboring the intent to cause physical injury to a person less than eleven years old, admits he recklessly engaged in conduct that created a grave risk of serious physical injury and thereby caused the death of his daughter. Such horrendous facts, unfortunately, have had their precedent for awarding punitive damages where a defenseless child meets a brutal death at the hands of her own father (see e.g. Launders v. Steinberg, 39 AD3d at 60 [$5 million dollars not excessive]). In Olson v. Brenntag N. Am., Inc. (69 Misc 3d 1214[A], 2020 NY Slip Op 51315[U] [Sup Ct, NY County 2020]), Acting Justice Gerald Lebovitz recently undertook a most instructive survey, observing that “the First Department and other departments of the Appellate Division have affirmed or adopted damage-award ratios greater than 1:1 (or for that matter 4:1) in multiple wrongful-death cases involving six figure compensatory awards (id. at *44). Justice Lebovitz cited the following cases: Estate of Ferguson v. City of New York, 73 AD3d 649, 651 [2010] [compensatory award of approximately $317,000.00; First Department reduced jury's punitive damages award from $7 million to $2.7 million; ratio of 8.5:1]; Brown v. LaFontaine-Rish Med. Assocs., 33 AD3d 470, 470 [2006] [compensatory award of approximately $368,000.00; First Department reduced jury's punitive-damages award from $5 million to $2.5 million; ratio of 6.8:1]; Guariglia v. Price Chopper Operating Co. (38 AD3d at 1044 [compensatory award of $325,000.00; Third Department affirmed punitive damages award of $750,000.00; ratio of 2.3:1]). This Court finds that an award of punitive damages for all causes of action in the amount of $3 million dollars sits well within the boundaries set by case law, being within a ratio of 2.25:1 of the total compensatory damages awarded. Therefore, upon consideration of the foregoing it is hereby ORDERED that plaintiff is entitled to $75,000.00 in damages for the wrongful death of the infant, $1,000,000.00 for the infant’s conscious pain and suffering, $250,000.00 for intentional infliction of emotional distress, and $3,000,000.00 in punitive damages, for a total award of $4,325,000.00; and it is further ORDERED that defendant is directed to pay $4,325,000.00 to plaintiff within sixty (60) days of the date of service of this Decision and Order with notice of entry thereon, and plaintiff shall have judgment therefor. The above constitutes the Decision and Order of the Court. The original of this Decision and Order has been filed by the Court. Counsel for plaintiff is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon defendant in accordance with CPLR 5513. Dated: December 21, 2020
