| Strader v Ashley |
| 2009 NY Slip Op 03079 [61 AD3d 1244] |
| April 23, 2009 |
| Appellate Division, Third Department |
| Donald G. Strader, Respondent, v John J. Ashley, Jr., etal., Appellants, et al., Defendant. |
—[*1] The Oliver Law Firm, Canton (Roger B. Linden of counsel), for respondent.
Stein, J. Appeal from an order of the Supreme Court (Demarest, J.), entered January 22,2008 in St. Lawrence County, which denied a motion by defendants John J. Ashley, Jr., JeremyF. McDonald and Ogdensburg Building Supply, Inc. to, among other things, set aside a verdict infavor of plaintiff.
Plaintiff commenced this action for damages based on, among other things, defamation,malicious prosecution and trespass. Defendants John J. Ashley, Jr., Jeremy F. McDonald andOgdensburg Building Supply, Inc. (hereinafter collectively referred to as defendants) defendedthe action[FN1]and Ogdensburg interposed a counterclaim for conversion. After trial, defendants were foundliable for defamation and trespass and were assessed $26,800 in compensatory damages for thoseclaims. Ashley and Ogdensburg were assessed an additional $250,000 in compensatory damagesbased on the jury's finding that they were also liable for malicious prosecution. The jury alsofound that plaintiff was entitled to punitive damages. Following a separate hearing to determinethe amount of punitive damages, plaintiff was awarded the sum of[*2]$100,000 as against Ashley and Ogdensburg, $5,000 as againstMcDonald and $12,500 as against defendant Chad P. Woods. The jury found no cause of actionon the conversion counterclaim. Supreme Court denied defendants' subsequent motion for anorder setting aside the verdict as being either contrary to the weight of the evidence or excessive.Defendants now appeal and we affirm.
The chain of events leading to the commencement of this action began with a telephone callfrom Woods to Ashley, alleging that he had witnessed plaintiff stealing 25-pound boxes of nailsand other merchandise from Ashley's store.[FN2]According to Ashley, Woods informed him that the items were stored in a garage and a Quonsethut located on plaintiff's property. When Ashley's attempts to call plaintiff regarding the theftallegations were unsuccessful, Ashley brought his son-in-law, McDonald, to plaintiff's property.Ashley and McDonald both testified that they entered the Quonset hut and found at least 30boxes of a particular type of screw sold at Ashley's store. They also testified that they left thebuilding without taking pictures, but that they made a mental list of the items therein.
When Ashley ultimately spoke with plaintiff, plaintiff denied any wrongdoing and advisedAshley that Woods had previously stolen money from a client while working for plaintiff andcould not be trusted.[FN3]Plaintiff's refusal to pay Ashley for the allegedly stolen items prompted Ashley to report thematter to the police, to whom he and McDonald gave written statements. Ashley also gave theinvestigating officer a written list of the items that he allegedly saw in plaintiff's Quonset hut.Consequently, plaintiff was arrested and charged with grand larceny in the fourth degree. Thecharge was subsequently reduced to petit larceny and, following a jury trial, plaintiff wasacquitted.
Defendants assert that the jury's verdicts regarding the claims of defamation and maliciousprosecution were against the weight of the evidence. In order to reach that conclusion, we mustdetermine that " 'the evidence so preponderates in favor of the defendant[s] that it could not havebeen reached on any fair interpretation of the evidence' " (Moffatt v Moffatt, 86 AD2d864, 864 [1982], affd 62 NY2d 875 [1984], quoting O'Boyle v Avis Rent-A-CarSys., 78 AD2d 431, 439 [1981]; see CPLR 4404; Lolik v Big VSupermarkets, 86 NY2d 744, 746 [1995]; Black v City of Schenectady, 21 AD3d 661, 662 [2005]).
Turning first to the cause of action for defamation, Supreme Court properly determined as amatter of law that the statements given by defendants to the police were defamatory if false, werepublished to others and referred to plaintiff, thereby establishing a prima facie case (seeRinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 379 [1977], cert denied 434 US969 [1977]). As truth is an absolute defense to a civil defamation action (see Ingber vLagarenne, 299 AD2d 608, 609 [2002], lv denied 99 NY2d 507 [2003];Schwartzberg v Mongiardo, 113 AD2d 172, 174 [1985], lv denied 68 NY2d 602[1986]), the sole question remaining for the jury to determine was whether defendants'statements were false. Defendants concede that the only [*3]evidence of the veracity of their statements was their owntestimony that they had personally observed approximately 30 boxes of screws inside plaintiff'sQuonset hut. While plaintiff admitted that he was in possession of approximately six unopenedboxes of screws, he denied having stolen anything from defendants and testified that he wasgiven at least two boxes and purchased the others. Furthermore, eightwitnesses—including one retired police officer—testified that they were in theQuonset hut at various times immediately preceding the date on which Ashley and McDonaldwere there and did not see a large pile of boxes of screws.
A jury is "free to weigh and discredit the testimony of any factual witness, even in theabsence of direct proof contradicting such witness's version of events" (Dobies v Brefka, 45 AD3d 999,1000 [2007]). Here, the jury apparently credited the testimony of plaintiff and his witnesses thathe did not steal screws from Ashley over the testimony of defendants.[FN4]Inasmuch as the jury's determinations of credibility are to be accorded great deference (seeWhitmore v Rowe, 245 AD2d 669, 670 [1997]), and we cannot say that its findings couldnot have been reached on any fair interpretation of the evidence, we find that the jury's verdict onthe first cause of action is not against the weight of the evidence.
We next address the claim for malicious prosecution. As defendants concede that a criminalproceeding was commenced against plaintiff based upon Ashley's accusations and that theproceeding terminated in plaintiff's favor, the only issues are whether the jury's findings thatAshley acted without probable cause and with malice and that plaintiff suffered a special injurywere contrary to the weight of the evidence (see Minasian v Lubow, 49 AD3d 1033, 1034 [2008]). Theevidence established that Ashley was advised of Woods' history of dishonesty and motive toretaliate against plaintiff. Further, in view of the conflicting testimony regarding the presence ofthe subject screws on plaintiff's property, and since the only indicia of plaintiff's guilt came fromdefendants' own arguably self-interested testimony that they actually observed the items thatWoods reported plaintiff had stolen—which testimony was deemed not credible by thejury—a reasonable interpretation of the facts existed to support the jury's determinationthat defendants acted without probable cause (see Colon v City of New York, 60 NY2d78, 82 [1983]).[FN5]Moreover, the jury was entitled to infer malice based upon its finding that Ashley lackedprobable cause to initiate the criminal proceeding (see Martin v City of Albany, 42NY2d 13, 17 [1977]).
Defendants' challenge to the awards of damages is also unpersuasive. We note that theamount of damages in a libel action is " 'peculiarly within the jury's province' " (Yammine v DeVita, 43 AD3d520, 521 [2007], quoting Calhoun v Cooper, 206 AD2d 497, 497 [1994]; see[*4]Frechette v Special Mags., Inc., 285 App Div 174, 178[1954]; Lynch v New York Times Co., 171 App Div 399, 401 [1916]). Here, recordevidence demonstrated that the criminal charges brought against plaintiff were reported in thelocal newspaper and that, as a result of those charges, he was suspended, and ultimately forced toresign, from his position as code enforcement officer (a job which paid him $7,500 annually).Plaintiff further testified that he lost carpentry work and income from his position as a substituteteacher after his arrest. In addition, plaintiff testified that he suffered emotional and physicalharm—including feeling anxious and worried about his reputation in the community,feeling sick to his stomach, difficulty sleeping and eating and losing weight—and that hestopped socializing for fear of public scorn. Plaintiff also incurred legal expenses in defendinghimself against the criminal charges. Neither the award of $26,800 for the defamation claim northe award of $250,000 for the malicious prosecution claim deviate materially from what isreasonable compensation (see Dobies v Brefka, 45 AD3d at 1001; Yammine vDeVita, 43 AD3d at 521; Byrd v New York City Tr. Auth., 172 AD2d 579, 581[1991], lv denied 80 NY2d 751 [1992]; Maxwell v City of New York, 156 AD2d28, 35 [1990]; Orndorff v De Nooyer Chevrolet, 117 AD2d 365, 369 [1986]; Burlettv County of Saratoga, 111 AD2d 426, 427 [1985]).
We also find the award of punitive damages to be appropriate. Punitive damages areawarded in an effort to punish the wrongdoer and to deter repetition of such behavior in thefuture (see Ross v Louise Wise Servs.,Inc., 8 NY3d 478, 489 [2007]). Here, the jury awarded punitive damages afterdetermining that defendants had defamed plaintiff and that Ashley caused a criminal proceedingto be initiated against him without probable cause to believe him guilty of the crime charged,resulting in a negative impact on plaintiff's personal and professional life. It was notunreasonable for the jury to determine that defendants' actions were "not simply intentional but'evince[d] a high degree of moral turpitude and demonstrate[d] such wanton dishonesty as toimply a criminal indifference to civil obligations' " (id. at 489, quoting Walker vSheldon, 10 NY2d 401, 405 [1961]). Moreover, inasmuch as the awards for compensatorydamages substantially exceed the awards for punitive damages, the disparity between themcomports with what has been determined to be an acceptable ratio and is not so exorbitant to bedeemed " 'actuated by passion' " (Guariglia v Price Chopper Operating Co., Inc., 38 AD3d 1043,1044 [2007], lv denied 9 NY3d 801 [2007], quoting Nardelli v Stamberg, 44NY2d 500, 504 [1978] [citation omitted]; see State Farm Mut. Automobile Ins. Co. vCampbell, 538 US 408, 425 [2003]).
Finally, we discern nothing inappropriate in the nominal damage award of $200 with regardto the trespass claim, notwithstanding plaintiff's failure to demonstrate actual damages incurredas a result thereof (see Danchak v Tuzzolino, 195 AD2d 936, 938 [1993]).
Peters, J.P., Rose, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1: Defendant Chad P. Woods didnot answer the complaint and a default judgment was taken against him. He has not participatedin this appeal.
Footnote 2: Ogdensburg is the owner of thestore and Ashley is the president and principal shareholder of the corporation.
Footnote 3: In fact, Woods testified at adeposition that he blamed plaintiff for the fact that the police investigated him and charged himwith petit larceny, to which he pleaded guilty.
Footnote 4: Notably, the jury in the criminaltrial evidently made the same determination.
Footnote 5: Defendants' alternativeargument that a civil complainant who merely provides information to police cannot be heldliable for malicious prosecution was not raised at trial and, thus, was not preserved for ourreview. In any event, we would find it to be without merit under the circumstances of this case(compare Dempsey v Masto, 83 AD2d 725, 726 [1981], affd 56 NY2d 665[1982], with Krzyzak v Schaefer,52 AD3d 979, 980 [2008]).