Opinion
April 1, 1983
Appeal from the Supreme Court, Monore County, Curran, J.
Present — Dillon, P.J., Doerr, Boomer, Moule and Schnepp, JJ.
Judgment unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: The plaintiffs appeal, seeking to set aside as inadequate a jury award of $3,000 compensatory damages for injuries received by plaintiff James V. Calabrese when assaulted by the defendant Chilton. His injuries include the loss of two teeth and a fractured jaw for which he incurred medical and dental expenses in the amount of $2,900. There is no basis for setting this verdict aside. The court instructed the jury that if they found that the plaintiff provoked the action of the defendant Chilton by threatening words or actions immediately preceding the striking, and that Chilton's acts were committed in a state of excitement engendered by plaintiff's provocation, they could take that fact into consideration in fixing damages (see 2 N.Y. PJI 590). There is adequate evidence in the record to justify this charge. Thus, we cannot say that the award of damages was inadequate. The jury was authorized to reduce the amount of compensatory damages because of the plaintiff's acts of provocation. The form of the judgment must be modified, however. The judgment recites an award of $3,000 compensatory damages against the corporate defendant alone. Interpreting the jury's answers to the written interrogatories, we construe the verdict as an award of compensatory damages against both defendants, and we modify the judgment accordingly.