Carlson v. Porter

Pine, J. (dissenting in part).

I respectfully dissent in part with respect to the judgment in appeal No. 2 because I cannot agree with the majority that the award of damages for preimpact terror and past and future loss of parental guidance should be set aside. In my view, the only parties who properly challenged the amount of damages were defendants Airborne, Inc., Airborne, Inc., doing business as Airborne Express, DHL International, Ltd. and DHL Worldwide Express (collectively, DHL defendants), who addressed that issue in point III of their brief. Inasmuch as we have dismissed the complaint against the DHL defendants, I conclude that the issue of the amount of damages is not properly before us. At no point in its brief did defendant MVP Delivery and Logistics, Inc. even address damages. The majority concludes that defendant William M. Porter has properly challenged the award of damages. Upon my review of Porter’s brief, however, I find no such challenge. In the “Table of Contents,” Porter lists only two issues to be briefed on appeal, neither of which concerns damages; he lists only those two issues as “Questions Presented”; and the only analyses in his brief ad*1135dress those two issues. On the last page of his brief, Porter states merely that “the trial court’s errors resulted in a verdict that was excessive and unsupported by competent evidence. The verdict consequently granted was grossly excessive and contrary to the weight of the evidence.” In my view, that passing reference to the amount of the verdict is insufficient to raise on appeal an issue whether any part of the award of damages was excessive. Where, as here, there is no discussion of the criteria that a court should consider or any citation to cases addressing similar issues, any issue with respect to damages must be deemed abandoned (see Ciesinski v Town of Aurora, 202 AD2d 984 [1994]). Furthermore, I note that the majority has not addressed the other “issue” ostensibly raised by that sentence, to wit, that the verdict is contrary to the weight of the evidence. If the majority considers the issue of damages to be raised on appeal based on the fleeting comment in that sentence, it is surprising that the majority failed to address the other fleeting comment in that sentence concerning the weight of the evidence as well. Present—Centra, J.P., Lunn, Peradotto, Green and Pine, JJ.