v. Scanlon, 708 F. Supp. 551, 558 (S.D.N.Y. 1989). In fact, Judge Dolinger noted this uncertainty in his Report. (Report at 25.)
Because of this uncertainty, this determination is one that is left to the sound discretion of the trier of fact. Big Seven Music Corp. v. Lennon, 554 F.2d 504, 512 (2d Cir. 1977); Manger v. Kree Institute of Electrolysis, 233 F.2d 5, 9 n.5 (2d Cir. 1956). Upon review by the Court, Judge Dolinger's thorough analysis of the evidence offered by Plaintiff is correct. Plaintiff did not prove anything by offering the evidence of only one so-called expert -- a certified public accountant who had no experience with the wrestling business. With the burden of proof on the Plaintiff to establish damages and provide some reasonable basis to quantify them, the only conclusion to draw from the Plaintiff's expert's testimony is that there were no economic damages proven, ascertainable or otherwise, from Titan's actions.
2) Emotional Damages
Plaintiff also objects to Judge Dolinger's finding that he was entitled to no damages for emotional injury. Again, after reviewing the Report, the Court holds that Judge Dolinger's analysis is correct and accepts his Recommendation on this issue.
As noted above, Plaintiff has the burden of proving damages. However, at the inquest, the evidence of Plaintiff's alleged emotional injury was his bald statement that he was angry and distressed. (Tr. at 106.) This mere statement of injury does not rise to the level of proof required in the cases cited in the Report. (Report at 28-30.) Plaintiff offered no evidence to support his assertion, and thus did not meet the burden of proof on this issue.
3) Punitive Damages in the Dismissed Action
Plaintiff further objects to Judge Dolinger's finding that he was entitled to no punitive damages in his underlying case against Titan, and therefore entitled to none in his legal malpractice inquest. Plaintiff also objects to the standard used by Judge Dolinger in his determination. Because Judge Dolinger used the incorrect standard in assessing Plaintiff's evidence, the Court rejects this portion of Judge Dolinger's Report and enters its own finding that Plaintiff would have been entitled to punitive damages from Titan, had the underlying case not been dismissed. However, the Court finds, in agreement with Judge Dolinger, that the Defendant is not liable for the punitive damages that might have been found against Titan.
Judge Dolinger used an "intentional or wanton misconduct" standard to assess Plaintiff's punitive damages claim. (Report at 31.) This standard is the correct standard for tort actions arising under common law. See Big Seven Music Corp. v. Lennon, 554 F.2d 504, 513 (2d Cir. 1977). This standard is not, however, the correct standard for actions arising under section 51 of the Civil Rights Law of New York. The Legislature can authorize different criteria for the award of punitive damages other than what the common law provides. Welch v. Mr. Christmas Inc., 57 N.Y.2d 143, 454 N.Y.S.2d 971, 975, 440 N.E.2d 1317 (N.Y. 1982); Big Seven, 554 F.2d at 512. The Legislature has done just that in section 51: "for recovery of [punitive] damages under the statute, therefore, no more need be shown than knowing use." Welch, 454 N.Y.S.2d at 975 (emphasis added).
This "knowing use" standard has been followed by New York courts in applying section 51 to punitive damages claims.
See, e.g., Beverley v. Choices Women's Med. Ctr., Inc., 170 A.D.2d 475, 565 N.Y.S.2d 833, 834 (N.Y.A.D. 2d Dep't 1991) (affirming "the award of punitive damages, since [defendant] knowingly published the plaintiff's picture in the calendar without her consent"); Caesar v. Chemical Bank, 118 Misc. 2d 118, 460 N.Y.S.2d 235, 237 (N.Y. Sup. Ct. 1983), aff'd, 106 A.D.2d 353, 483 N.Y.S.2d 16 (N.Y.A.D. 1st Dep't 1984), aff'd, 66 N.Y.2d 698, 496 N.Y.S.2d 418, 487 N.E.2d 275 (N.Y. 1985) ("punitive damages can be awarded upon proof that defendant knowingly used the photographs"); Myers v. U.S. Camera Publishing Corp., 9 Misc. 2d 765, 167 N.Y.S.2d 771 (N.Y. City Ct. 1957); see also Lerman v. Chuckleberry Publishing, Inc., 496 F. Supp. 1105, 1109-10 (S.D.N.Y. 1980).
Thus, were punitive damages from Titan before this Court, under the "knowing use" standard, Plaintiff sufficiently proved that Titan knowingly used his image in its videotapes.
Evidence to support this knowing use is found in Titan's having offered Plaintiff a release that he did not sign and his actual appearance in eleven videos. (Tr. at 86-7.) Thus, Titan would be liable to Plaintiff for punitive damages.
However, this does not necessarily translate into the Defendant herein being held vicariously liable for the punitive damages that would have been awarded against Titan. Although generally a defendant attorney is liable to the plaintiff for the claim he would have recovered in the dismissed suit, ( Campagnola v. Mulholland, Minion & Roe, 76 N.Y.2d 38, 556 N.Y.S.2d 239, 555 N.E.2d 611 (N.Y. 1990)), the Court finds that punitive damages are not included in this general claim theory. The purpose of punitive damages is to punish the defendant, in this case Titan. Big Seven, 554 F.2d at 513 ("nor was there any finding that the punitive damages award would punish" the defendant); Hartford Accident and Indemnity Co. v. Village of Hempstead, 48 N.Y.2d 218, 226, 422 N.Y.S.2d 47, 52, 397 N.E.2d 737 (N.Y. 1979) ("the purpose of punitive damages . . . is to punish and to deter others from acting similarly); Walker v. Sheldon, 10 N.Y.2d 401, 404, 223 N.Y.S.2d 488, 490, 179 N.E.2d 497 (N.Y. 1961) (same); Roberts v. Conde Nast Publications, 286 A.D. 729, 146 N.Y.S.2d 493 (N.Y.A.D. 1st Dep't 1955) ("pay damages as a warning to others and as punishment to itself"). Furthermore, the purpose is not to compensate plaintiffs. Hence, if the purpose of punitive damages in the dismissed action was to punish Titan, it is illogical to hold Defendant liable for those damages. Having Defendant pay punitive damages would not deter future violations of § 51 by Titan. Hence, the Court agrees with Judge Dolinger that no derivative punitive damages should be awarded in this instance.
4) Punitive Damages for Attorney Malpractice
Plaintiff finally objects to Judge Dolinger's refusal to award any punitive damages against Defendant for attorney malpractice. Judge Dolinger used the appropriate standard of review here in ruling that Plaintiff should not be awarded punitive damages.
The cases cited by Judge Dolinger support the conclusion that Plaintiff is not entitled to punitive damages. New York State law provides that punitive damages are not recoverable for an ordinary breach of contract. Rocanova v. Equitable Life Assur. Soc., 83 N.Y.2d 603, 613, 612 N.Y.S.2d 339, 342, 634 N.E.2d 940 (N.Y. 1994). However where a cause of action involves fraud
or a breach of contract, punitive damages may be awarded if the defendant's conduct "'was so outrageous as to evince a high degree of moral turpitude and showing such wanton dishonesty as to imply a criminal indifference to civil obligations.'" Walker v. Stroh, 192 A.D.2d 775, 596 N.Y.S.2d 213, 214 (N.Y.A.D. 3d Dep't 1993) (citing Zarin v. Reid & Priest, 184 A.D.2d 385, 585 N.Y.S.2d 379, 382 (N.Y.A.D. 1st Dep't 1992) (citing Walker v. Sheldon, 10 N.Y.2d 401, 223 N.Y.S.2d 488, 179 N.E.2d 497 (N.Y. 1961))); Rocanova, 83 N.Y.2d at 613, 612 N.Y.S.2d at 342; Lavanant v. General Accident Ins. Co. of Am., 212 A.D.2d 450, 622 N.Y.S.2d 726, 727 (N.Y.A.D. 1st Dep't 1995). Although Defendant surely acted in blatant disregard of its contractual obligations to Plaintiff, Defendant did not act in a criminally indifferent manner.
The Court thus concludes that Judge Dolinger correctly ruled that Plaintiff was not entitled to punitive damages. While other avenues and remedies may be appropriate and available to Plaintiff to address the clear injury suffered by Defendant's omissions and misdeeds, punitive damages is not one of them.
Accordingly, the Recommendations in the Magistrate's Report are accepted and adopted by the Court. Plaintiff is thus awarded a total of $ 3,515.56, plus prejudgment interest as found in the Report.
DATED: New York, New York
February 6, 1996
DEBORAH A. BATTS