This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 163 

Stacy S. Killon,

 Respondent,

 v.

Robert A. Parrotta,

 Appellant.

Gregory V. Canale, for appellant.

Joseph R. Brennan, for respondent.

ABDUS-SALAAM, J.:

The issue presented is whether the Appellate Division

applied the correct test in setting aside the jury verdict and

concluding as a matter of law that defendant was the initial

aggressor in the physical altercation between the parties,

rendering a justification defense unavailable to defendant during

retrial of the case. We hold that the Appellate Division did not

apply the "utterly irrational" test required to make that

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determination as a matter of law. Applying that test to the

trial evidence and in consideration of the jury instruction

given, we hold that it was not utterly irrational for the jury to

find that defendant was not the initial aggressor and that he

acted in self-defense. We therefore reverse and remit to Supreme

Court for retrial. 

I. 

This personal injury action resulted from a physical

altercation between plaintiff, Stacey Killon and defendant,

Robert Parrotta. During trial the evidence revealed that

plaintiff, a longtime friend of defendant's then-wife, made a

drunken threatening phone call to defendant concerning

defendant's treatment of his wife. In response, defendant drove

approximately 20 miles in the middle of the night to plaintiff's

residence in Olmstedville. Defendant's stated intention was to

end their dispute face-to-face, or to engage in a physical

altercation. During defendant's drive, he placed two phone calls

to his then-wife. Although defendant testified during trial that

she did not answer either of his calls, his then-wife testified

that she had answered and defendant told her he was going to

Olmstedville to beat up plaintiff and to tell plaintiff that he

was coming for that purpose. 

When defendant arrived at plaintiff's home, he shined

his truck lights onto plaintiff's property. Defendant and

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plaintiff, however, disagree on what occurred thereafter. 

Defendant claims that after plaintiff saw him, plaintiff exited

his home with a maul hammer handle in hand. Defendant testified

that he only wanted to talk to plaintiff, but after seeing

plaintiff with the maul handle, he retrieved a bat out of his

truck to defend himself. According to defendant, plaintiff then

encouraged his dog to attack defendant. Defendant testified that

plaintiff, still standing on his porch, swung the maul handle at

him, grazing the back of defendant's head. Defendant, claiming

he could not retreat because he had bad knees, swung his bat at

plaintiff. Although defendant does not recall the bat making

contact with plaintiff, plaintiff suffered extensive damage to

his jaw as a result. Defendant fled the scene following the

incident. In plaintiff's version of events, when defendant

arrived at his home, he repeatedly told defendant to leave. He

stated that as he stepped off his front porch he threw the maul

handle to the ground, not at defendant. Defendant then swung his

bat at plaintiff, causing plaintiff's injuries. Additionally, a

witness for plaintiff who was present during the incident

testified that when defendant arrived, he came out of his truck

with the bat.

Supreme Court provided the following jury instruction:

"defendant claims he was acting in

self-defense and therefore is not liable for

damages to the plaintiff. The defendant has

the burden of establishing self-defense by a

fair preponderance of the credible evidence,

as I have defined that term for you.

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In order to establish self-defense,

the defendant must establish that he

reasonably believed the plaintiff was

attacking or about to attack him and that the

force that the defendant used to prevent

injury to himself was reasonable under the

circumstances. . . . In order for the

defendant to be justified in using physical

force, you must find the following factors:

First. Whether the defendant was

the initial aggressor. Initial aggressor

means the person who first attacks or

threatens to attack . . . [t]he actual

striking of the first blow or inflicting the

first wound is not in itself determinative of

the question of who was the initial

aggressor. . . . A person who reasonably

believes that another person is about to use

physical force upon him need not wait until

he's struck or wounded. He may in such

circumstances use physical force defensively,

so long as it was reasonable for him to

believe that the other person was using or

about to use physical force upon him. He is

then not considered to be the initial

aggressor, even though he strikes the first

blow or inflicts the first wound. 

Verbal quarrels, the use of abusive

language, the calling of names or verbal

threats do not justify the use of any

physical force. You may not consider any of

these in determining who was the initial

aggressor. 

If you are satisfied that the

defendant was the initial aggressor, then you

must find he was not acting in self-defense. 

On the other hand, if the defendant was not

the initial aggressor, you must continue 

. . . to the remaining factors"

The jury reached a unanimous verdict that defendant

battered plaintiff by striking him with a bat, but also found

that defendant acted in self-defense. Plaintiff moved for an

order pursuant to CPLR 4404 (a) to set aside the verdict as a

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matter of law and direct judgment in his favor or, alternatively,

set aside the verdict as contrary to the weight of the credible

evidence and grant him a new trial. Supreme Court denied

plaintiff's motion, holding that based on all the facts

presented, the jury could have concluded that defendant's actions

were in self-defense, and judgment was entered in defendant's

favor. 

On appeal, the Appellate Division reversed the Supreme

Court order and judgment and ordered a new trial (98 AD3d 828 [3d

Dept 2012][hereinafter the "2012 Appellate Division order"]). 

The court concluded that "no fair interpretation of the evidence"

supported "the verdict finding that defendant acted in

self-defense" inasmuch as it was predicated upon "a conclusion

that defendant was not the initial aggressor in the encounter"

(id. at 829). The court held that

"[d]espite plaintiff's prior threatening

phone calls and the evidence that plaintiff

was the first of the two to swing his club,

there is no dispute that defendant drove to

plaintiff's home and then advanced on

plaintiff's front porch with a bat in his

hand while demanding a fist fight. Given

these circumstances, the jury's conclusion

that defendant was not the first to threaten

the immediate use of physical force is

unreachable on any fair interpretation of the

evidence"

(id. at 830). Two Justices dissented and voted to affirm,

contending that "there [wa]s a fair interpretation of the

evidence that support[ed] the conclusion that defendant was not

the initial aggressor and, therefore, the jury's verdict should

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not be disturbed" (id. at 830). The dissent noted that "the fact

that defendant went to plaintiff's home, approached the porch

holding a bat and invited plaintiff to fist fight with him d[id]

not require a finding that defendant was the initial aggressor"

(id. at 831).

During the retrial ordered by the Appellate Division

majority, Supreme Court indicated that it was constrained by the

holding in the 2012 Appellate Division order that defendant was

the initial aggressor, as a matter of law, and denied defendant's

request to charge the jury on self-defense. The jury found that

defendant had committed a battery upon plaintiff and that

plaintiff did not provoke the battery. The jury also awarded

plaintiff $200,000 in damages for medical costs, $0 for past pain

and suffering, and $25,000 for future pain and suffering. As

relevant here, on appeal from the retrial, the Appellate Division

"reject[ed] defendant's claim that Supreme Court erred because it

did not issue a justification charge to the jury" because that

"defense is not available to the initial aggressor, and defendant

concedes that, pursuant to this Court's prior decision, he was

the 'initial aggressor'" (125 AD3d 1220 [3d Dept 2015]).1 

Defendant's appeal to this Court from the 2015 order

1 The Appellate Division also held that "the jury's failure

to award damages for plaintiff's past pain and suffering deviated

materially from reasonable compensation," requiring a retrial

unless the parties could stipulate to an increase in the awards

for past and future pain and suffering (125 AD3d at 1223). 

Thereafter, the parties did so stipulate. 

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brings up for review the prior non-final 2012 order, which

concluded as a matter of law that defendant was the initial

aggressor to whom the defense of justification is not available

(see CPLR 5601 [a]; 98 AD3d at 830; 125 AD3d at 1221).

II.

The question before us is whether the Appellate

Division's legal conclusion in its 2012 order was reached under

the proper test. When the Appellate Division reviews a jury

determination, it may either examine the facts to determine

whether the weight of the evidence comports with the verdict, or

the court may determine that the evidence presented was

insufficient as a matter of law, rendering the verdict utterly

irrational (see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). 

Defendant argues that the Appellate Division erred by setting

aside the jury verdict in his favor and improperly determining as

a matter of law that a justification defense was unavailable to

him, without finding the verdict to be utterly irrational. We

agree. 

The Appellate Division may not disregard a jury verdict

as against the weight of the evidence unless "the evidence so

preponderate[d] in favor of the [moving party] that it could not

have been reached on any fair interpretation of the evidence"

(Lolik v Big Supermarkets, 86 NY2d 744, 746 [1995]). Where the

Appellate Division determines that a verdict is against the

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weight of the evidence, the remedy is to remit for a new trial.

By contrast, where the Appellate Division intends to hold that a

jury verdict is insufficient as a matter of law, it must first

determine that the verdict is "utterly irrational" (Campbell v

City of Elmira, 84 NY2d 505, 510 [1998]). To conclude that a

verdict is utterly irrational, requiring vacatur of the verdict,

the court must determine that "there is simply no valid line of

reasoning and permissible inference which could possibly lead [a]

rational [person] to the conclusion reached by the jury on the

basis of the evidence presented at trial" (id.). "When it can be

said that 'it would not be utterly irrational for a jury to reach

the result it . . . determined . . . the court may not conclude

that the verdict is as a matter of law not supported by the

evidence'" (id., quoting Cohen, 45 NY2d at 499). 

In its 2012 order, although the Appellate Division

examined the facts and determined that "the jury's conclusion

that defendant was not the first to threaten the immediate use of

physical force [wa]s unreachable on any fair interpretation of

the evidence" (98 AD3d 830) -- ostensibly a weight of the

evidence review -- the effect of that order was to hold as a

matter of law that defendant was the initial aggressor to whom

the defense of justification was not available -- a determination

that could only be reached by concluding that the verdict was

"utterly irrational." Yet, the Appellate Division did not use

the utterly irrational test. The Appellate Division's error in

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not applying the proper test resulted in defendant being

improperly precluded from raising a justification defense on the

retrial. Defendant should have been afforded a new trial on all

the issues in the case, including consideration of his

justification defense by the jury. Despite this error, reversal

is only required if we find that the jury verdict was not utterly

irrational. 

III.

Because determining whether a jury verdict was utterly

irrational involves a pure question of law, this Court may look

at the trial evidence and make that determination (see e.g.

Cohen, 45 NY2d 493). We must consider the jury charge as to

initial aggressor and self-defense that was given during the

first trial because the instruction, submitted without objection,

is the law of the case (see Passantino v Consolidated Edison Co.

of New York, Inc., 54 NY2d 840, 842 [1981]). Based on that

instruction, set forth above, we hold that the jury's

determination that defendant acted in self-defense was not

utterly irrational.

The evidence presented during the first trial, as

summarized in this opinion, revealed conflicting versions of

events. Although the entire encounter occurred because defendant

drove to the plaintiff's home, it was not utterly irrational for

the jury, under the charge delivered to it, to determine that

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defendant was not the initial aggressor based on the conflicting

versions. The jury could have believed that plaintiff brought

out a weapon first, told his dog to attack defendant, and swung

his weapon first. Because the jury verdict was not utterly

irrational, we reverse and remit to Supreme Court for a new

trial.2 

Accordingly, the order appealed from and the August 30,

2012 Appellate Division order insofar as brought up for review

should be reversed, with costs, and the matter remitted to

Supreme Court for a new trial in accordance with the opinion

herein.

* * * * * * * * * * * * * * * * *

Order appealed from and the August 30, 2012 Appellate Division

order insofar as brought up for review reversed, with costs, and

matter remitted to Supreme Court, Warren County, for a new trial

in accordance with the opinion herein. Opinion by Judge

Abdus-Salaam. Chief Judge DiFiore and Judges Pigott, Rivera,

Fahey and Garcia concur. Judge Stein took no part.

Decided October 27, 2016

2 While we would normally remit to the Appellate Division

to consider whether the jury's verdict on self-defense was

against the weight of the evidence, because under these unusual

circumstances where the Appellate Division already performed that

analysis and decided the case should be retried, remittal

directly to Supreme Court for a new trial is most appropriate. 

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