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Supreme Court, Appellate Division, Second Department, New York.

Michael B. GRIECO, Appellant-Respondent, v. Philip GALASSO, Respondent-Appellant.

Decided: September 16, 2002

DAVID S. RITTER, J.P., SANDRA J. FEUERSTEIN, NANCY E. SMITH and THOMAS A. ADAMS, JJ. Agoglia, Fassberg, Holland & Crowe, P.C., Mineola, N.Y. (Craig D. Holland of counsel), for appellant-respondent. Edmund F. Wolk, New York, N.Y. (Michael B. Wolk and Amy E. Kirwan of counsel), for respondent-appellant.

In an action to recover damages for defamation, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Warshawsky, J.), dated March 26, 2001, as granted the defendant's motion to set aside a jury verdict awarding him compensatory damages in the sum of $200,000 and punitive damages in the sum of $600,000, to the extent of granting a new trial on the issue of damages only unless the parties agreed to reduce the verdict as to compensatory damages to the sum of $35,000 and the verdict as to punitive damages to the sum of $100,000, and the defendant cross-appeals from so much of the same order as, inter alia, denied his motion to set aside the jury verdict.   The appeal and cross appeal bring up for review an order of the same court, dated June 6, 2001, which, upon reargument, amended the order dated March 26, 2001, to provide that only the plaintiff needed to agree to the reduced damage awards, and otherwise adhered to the original determination (see CPLR 5517[b] ).

ORDERED that the appeal and cross appeal from the order dated March 26, 2001, are dismissed, without costs or disbursements, as that order was superseded by the order dated June 6, 2001, made upon reargument;  and it is further,

ORDERED that the order dated June 6, 2001, is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The plaintiff, Michael B. Grieco, is a long-time resident of and a successful surgeon in Glen Cove. While he and his now former wife were separated and the wife was living with the defendant Philip Galasso, Galasso affixed professionally made 3′ x 4′ billboardstyle signs to his vehicle which read, “Dr. Grieco earns nearly $700,000 in this community yet refuses to pay child support.”   Galasso parked his vehicle in a highly visible parking lot near where Grieco worked, and also drove the vehicle in the area. At the time, Grieco had custody of the two children, but one child had left to live with the wife.

The jury found in favor of Grieco, awarding compensatory and punitive damages.   Grieco now appeals, and Galasso cross-appeals, from an order of the Supreme Court which granted Galasso's motion to set aside the verdict and for a new trial to the extent of granting a new trial on the issue of damages unless Grieco only agreed to reduced damage awards.   We affirm.

 Contrary to Galasso's contention, the Supreme Court properly determined that, as a matter of law, a reasonable reader would have understood the complained-of statement to be one of fact, not opinion (see Old Dominion Branch No. 496, Nat. Ass'n of Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745;  Millus v. Newsday, Inc., 89 N.Y.2d 840, 652 N.Y.S.2d 726, 675 N.E.2d 461, cert. denied 520 U.S. 1144, 117 S.Ct. 1313, 137 L.Ed.2d 476;  Steinhilber v. Alphonse, 68 N.Y.2d 283, 508 N.Y.S.2d 901, 501 N.E.2d 550).   Thus, the Supreme Court correctly denied Galasso's motion to set aside the verdict on such ground.   Further, under the circumstances presented, the burden was on Galasso to prove the statement true, not on Grieco to prove the statement false (see Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593;  Bounds v. Mutual of Omaha Ins. Co., 37 A.D.2d 1008, 325 N.Y.S.2d 573; 2 PJI 3d 160 [2002];  PJI 3d 3:33 [2002] ).   Finally, the Supreme Court properly declined to submit the issue of Galasso's defense of truth to the jury (see Carter v. Visconti, 233 A.D.2d 473, 650 N.Y.S.2d 32;  Kadish v. Dressner, 86 A.D.2d 622, 623, 446 N.Y.S.2d 354).   Galasso presented no evidence that Grieco was in violation of any court order or agreement to pay child support, or that Grieco was otherwise failing to support his children.

 However, we agree that, to the extent indicated by the trial court, the award of compensatory damages deviated materially from what would be reasonable compensation (see CPLR 5501[c];  Wolosin v. Campo, 256 A.D.2d 332, 681 N.Y.S.2d 358), and that the award of punitive damages was excessive (see Suffolk Sports Ctr. v. Belli Constr. Corp., 241 A.D.2d 546, 664 N.Y.S.2d 724).

Galasso's remaining contentions lack merit.

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