DECISION AFTER TRIAL Plaintiff BETTY MONCION (“Plaintiff”) commenced the instant action seeking to recover $25,000.00 based on injuries she sustained when she was allegedly assaulted and battered by defendants VANESSA LYONS (“Ms. Lyons”), MALENS LYONS (“Malens”), and FATIMA LYONS (“Fatima” and collectively the “Defendants”). Procedural History An initial trial was held on April 3, 2018, and the matter was dismissed by the Hon. Joy F. Campanelli. The Plaintiff appealed the decision. By decision and order dated December 23, 2022, the Appellate Term for the 2nd, 11th, and 13th Judicial Districts reversed the decision, and remitted the matter to this court for a new trial. The matter was referred to the undersigned1 for trial on April 18, 2023, wherein the Plaintiff appeared pro se and Defendants were represented by counsel. Trial Testimony Plaintiff testified that on August 30, 2016, she was involved in a confrontation with one of Ms. Lyons’s teenage daughters in an elevator in her apartment building operated by the New York City Housing Authority (“NYCHA”). The Plaintiff testified that while the elevator was traveling from the second to the eighth floor, one of Ms. Lyons’s daughters (who was never identified) stopped the elevator on the sixth floor, where the Defendants’ apartment is located and called for her mother. The Plaintiff testified both Ms. Lyons and her other daughter responded to the elevator. The Plaintiff testified that she was assaulted in the elevator by Ms. Lyons. She testified she was struck repeatedly in her face, head, body, and foot. She said she fell to the floor outside the elevator and did not move until the authorities responded. The Plaintiff’s daughter, who was present during the altercation, called the police and an ambulance. The Plaintiff testified she was taken by ambulance to the emergency room at Richmond University Medical Center (“RUMC”). The Plaintiff alleged she suffered injuries from punches to the head, body, and foot. The Plaintiff alleged she had a fracture of the foot, but no medical evidence was introduced to support that claim. The Plaintiff said she was examined and given pain medication but did not describe any other treatment. The Plaintiff did not offer any testimony that the hospital prescribed a cast, boot, crutches, or a brace. The Plaintiff testified that after her discharge from RUMC on August 30, 2016, she presented herself to medical providers in Brooklyn in September 2016 because of her continued pain. She testified that was treated for pain at the emergency room at NYU Langone Hospital Brooklyn (“NYU Langone”), but she did not describe any other treatment. She testified that the medical staff at NYU Langone followed up with her, but the Plaintiff did not describe any particular treatments she received. She did, however, state that she was in constant pain. She also complained of high blood pressure since the altercation; however there is no medical evidence to prove the high blood pressure was caused by the assault and battery. The Plaintiff repeatedly stated she suffers from anxiety and depression as a result of the impact of this assault upon herself and upon her daughter, who was also allegedly a victim in this altercation. However, there is no evidence of a medical diagnosis from a psychiatrist or psychologist showing a diagnosis of these conditions. Therefore, the Court cannot consider anxiety and depression as part of the Plaintiff’s damages. Furthermore, this Court will not consider the impact of the alleged assault on the Plaintiff’s daughter as part of the Plaintiff’s damages. The Plaintiff testified that she was working for a cleaning company prior to this accident and continued to work for the company until September 24, 2016, when she was terminated. She testified she was bringing her teenage daughter to the job with her. The Plaintiff acknowledged she sued her employer to get her job back; however, that case was dismissed. She did not offer any evidence that she stopped working because of her injuries. The Plaintiff offered copies of medical records from RUMC, and NYU Langone into the trial record; however, the documents were not in admissible form. To be admissible into evidence before the court, the medical records should have been bound together with a certificate from the hospital or medical provider attesting that the records were true and accurate copies. Instead, the Plaintiff produced random out-of-order documents without any certification. While it appeared that these records were from the hospitals where Plaintiff was treated, there was no way to determine if the records were a complete set. Therefore, the records were not admitted into evidence. The Court did admit into evidence as a business record a copy of the Order of Protection issued by the New York City Criminal Court preventing Ms. Lyons from having any contact with the Plaintiff through October 11, 2017. The Court also received the Verification of Crime Form (PD 542-061) from the New York City Police Department showing the date of the assault on August 30, 2016, inside the NYCHA apartment building at 778 Henderson Avenue. The Court also received into evidence three (3) pictures taken by the Plaintiff of herself on her cell phone that showed contusions on the elbow as well as black and blue marks with swelling around her eyes and face. None of the Defendants testified in this matter; nor did the Defendants offer any evidence into the record. Discussion To sustain a cause of action to recover damages for assault, “there must be proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact. To recover damages for battery, a plaintiff must prove that there was bodily contact, that the contact was offensive, and that the defendant intended to make the contact without the plaintiff’s consent” (Bastein v. Sotto, 299 AD2d 432, 433 [2d Dept 2002]). The Court finds the Plaintiff’s testimony that she was assaulted and battered by Ms. Lyons to be credible. The Plaintiff’s unopposed testimony that she was struck multiple times by Ms. Lyons in the elevator, along with the pictures taken from the assault, satisfy her burden of proof for the torts of assault and battery Turning to the issue of damages, the Plaintiff testified that she did not receive any type of medical treatment other than pain medication. The Plaintiff did not offer any bills or receipts for medical expenses she incurred because of the assault and battery. Furthermore, the Plaintiff did not lose time from work because of her injuries. She was fired for reasons she would not discuss and sued to be restored to her job, showing that her assault and battery were not the cause of her lost time. Therefore, the Plaintiff did not prove any economic loss caused by the assault and battery. The Plaintiff stated she did suffer from pain throughout her body from the bruises and contusions caused by being punched and hit during the assault. She alleged that she suffers pain to this day, which the Court finds credible, and that the pain never improved, which the Court does not find credible. However, since there are no medical records introduced into evidence to show the injury allegedly causing the pain, this Court cannot award damages for pain and suffering. In reversing the prior trial court’s decision, the Appellate Term stated the trial court failed to consider awarding nominal damages and/or punitive damages where the Plaintiff had established her prima facie case. In this instance, the Court finds the Plaintiff has met her burden of proof and established her prima facie case in this new trial proving Ms. Lyons committed assault and battery upon the Plaintiff. However, the Plaintiff did not so show any evidence to warrant the compensatory damages she demanded in the Complaint. The only defendant identified by the Plaintiff as taking part in the assault was Ms. Lyons. The Plaintiff testified that Ms. Lyons’s daughters participated in the assault and battery; however, she never identified them by name. Furthermore, there was no evidence offered in documents from the NYPD or the Criminal Court to support allegations that the daughters participated in the assault and battery. Therefore, the Court determines Ms. Lyons is solely liable for the assault and battery. As compensatory damages have not been proven, the Court now looks to see if nominal damages are appropriate. The Appellate Division, Second Department has described nominal damages as “a trifling sum awarded to a plaintiff in an action where there is no substantial loss or injury to be compensated, but still the law recognizes a technical invasion of his [or her] rights or a breach of the defendant’s duty. These are formal damages as distinguished from real or substantial ones. Awards of six cents or $1 represent nominal damages.” (McWeeney v. Lambe, 138 AD3d 796, 796-97 [2d Dept 2016]) (internal citations omitted) In this case, an award of nominal damages is appropriate because the Plaintiff has proven the underlying claim of injury but not the economic loss. The testimony, evidence, and in particular the pictures of the Plaintiff after the assault and battery, demonstrate the physical contact by Ms. Lyons upon the Plaintiff. An award of nominal damages by this Court in the amount of $1.00 is appropriate based upon this record. The Court now considers an award of punitive damages. The purpose of punitive damages is “to punish and deter others from acting in a similar manner” (Laurie Marie M. v. Jeffrey T.M., 159 AD2d 52, 58 [2d Dept 1990], affd sub nom. Laurie Marie M. v. Jeffery T.M., 77 NY2d 981 [1991]). The award of punitive damages is to serve as a warning to others” and “as punishment for gross misbehavior for the good of the public” (Id. quoting Toomey v. Farley, 2 NY2d 71, 83 [1956]). While there is no exact formula for awarding punitive damages, courts have held that an award “should bear some reasonable relation to the harm done and the flagrancy of the conduct causing it” (I. H. P. Corp. v. 210 Cent. Park S. Corp., 16 AD2d 461, 466 [1st Dept 1962], affd, 12 NY2d 329 [1963]). In this case it was alleged, but not proven, that the defendants Malens and Fatima were present and may have participated in the assault and battery. It is certainly in the interests of the public that all parties know that such an assault and battery is not acceptable and will have significant consequences. The Defendants did not offer any mitigating factors to explain the conduct. Therefore, the Court finds that punitive damages in the amount of $7,500.00 is warranted to show the significant harm to the public interest caused by Ms. Lyons’s conduct. Accordingly, it is hereby ORDERED that judgment is found in favor of the Plaintiff BETTY MONCION against defendant VANESSA LYONS; and it is further ORDERED that the Plaintiff is awarded nominal damages in the amount of $1.00 and punitive damages in the amount of $7,500.00; and it is further ORDERED that the matter is DISMISSED as to defendants MALENS LYONS and FATIMA LYONS. The parties shall have thirty (30) days to retrieve any evidence entered at trial from the Clerk’s Office. The foregoing constitutes the Decision and Order of the Court. Dated: April 24, 2023
