CPLR § 5511 Permissible appellant and respondent
CPLR § 5501 Scope of review
Geraci v Probst, 2009 NY Slip Op 02971 (App. Div., 2nd, 2009)
The defendants' contention that the trial court erred in allowing
testimony as to republication of Probst's defamatory statements by
Newsday is unpreserved for appellate review (see CPLR 5501; Firth v State of New York,
98 NY2d 365, 372). The defendants' contention that the trial court
erred in allowing testimony about an investigation of the plaintiff by
the District Attorney's office is without merit, as the evidence
demonstrated that the investigation was caused by Probst's own
defamatory statements (see Garrison v Sun Print & Publ. Assn.,
207 NY 1, 8). In addition, the trial court properly allowed testimony
about an out-of-court statement regarding the extent of the effect of
Probst's defamatory statements on the plaintiff's reputation, as the
testimony was not [*3]hearsay (see Gelpi v 37th Ave. Realty Corp., 281 AD2d 392).
A party who consents to a trial court's reduction of a damages
award is not aggrieved by the resulting judgment, and therefore is not
entitled to appeal from that judgment (see CPLR 5511; Zhagnay v Royal Realty Co.,
87 NY2d 954). Accordingly, the plaintiff's cross appeal must be
dismissed. However, the plaintiff may be afforded relief pursuant to
CPLR 5501(a)(5) (see Hecht v City of New York, 60 NY2d 57, 63, n; Papa v City of New York, 194 AD2d 527, 532; Donohoe v Foldner, 168 AD2d 412, 413).
In determining whether a jury's award of damages is excessive,
the court should consider whether the award "deviate[s] materially from
what would be reasonable compensation" (see CPLR 5501[c]; K. Capolino Constr. Corp. v White Plains Hous. Auth.,
275 AD2d 347, 349). Here, the Supreme Court properly determined that
the damage awards were excessive, and appropriately reduced the same to
the extent indicated.
The defendants' remaining contentions are either unpreserved for appellate review (see CPLR 5501; Firth v State of New York, 98 NY2d at 372), waived (see Santiago v RodrÍguez, 38 AD3d 639, 640), or without merit.
The bold is mine.