| Sital v City of New York |
| 2009 NY Slip Op 01716 [60 AD3d 465] |
| March 10, 2009 |
| Appellate Division, First Department |
| Keiwan Sital, Respondent, v City of New York,Appellant. |
—[*1] Irom, Wittels, Freund, Berne and Serra, P.C., Bronx (Richard W. Berne of counsel), forrespondent.
Amended judgment, Supreme Court, Bronx County (Larry S. Schachner, J.), entered on orabout February 13, 2008, after a jury verdict and stipulated reduction, awarding plaintiffdamages in the amount of $500,000 on his claim for false arrest and $1,600,000 on his claim formalicious prosecution, pursuant to an order, same court and Justice, entered February 4, 2008,which granted defendant's motion to set aside the verdict to the extent of directing a new trial onthe issue of damages unless plaintiff stipulated to said reduction in the award of damages,unanimously modified, on the facts, and the matter remanded for a new trial solely on the issueof damages on the cause of action for false arrest, and otherwise affirmed, without costs, unless,within 30 days of service of a copy of this order with notice of entry, plaintiff stipulates toreduce the award for false arrest to $150,000 and to entry of a further amended judgment inaccordance therewith. Appeal from the February 4, 2008 order, unanimously dismissed, withoutcosts, as subsumed in the appeal from the amended judgment. Appeal from judgment, same courtand Justice, entered on or about September 5, 2007, unanimously dismissed, without costs, assuperseded by the appeal from amended judgment.
The court properly denied defendant's motion for judgment as a matter of law (seegenerally Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]). Regarding the false arrest cause ofaction, the evidence demonstrates that a rational jury could have found that there was noprobable cause for plaintiff's arrest because the accusation from an identified citizen, which wasthe sole basis for the arrest, was not sufficiently reliable, given that the investigating officer haddoubts about the witness's credibility (compare Norasteh v State of New York, 44 AD3d 576 [2007],lv denied 10 NY3d 709 [2008]). The identification of plaintiff was also arguablycontradicted by physical evidence from the crime scene that was consistent with a conflictingstatement of an independent eyewitness, and the jury heard testimony showing that theinvestigating officer recognized plaintiff based on a prior arrest, at which time he had referred toplaintiff as "an animal." Under these circumstances, a rational jury could have determined thatthe officer's [*2]failure to make further inquiry of potentialeyewitnesses was unreasonable under the circumstances, and evidenced a lack of probable cause(see Roundtree v City of New York, 208 AD2d 407 [1994]).
Regarding the claim for malicious prosecution, there was a sufficient basis in the trial recordfor the jury to conclude that the presumption of probable cause created by the indictment wasrebutted (see Colon v City of New York, 60 NY2d 78, 82-83 [1983]). Viewing the factsin plaintiff's favor (see Szczerbiak, 90 NY2d at 556), the jury could have rationallyconcluded that the investigating officer, who did not alert the prosecutor to the statement byanother witness, which was inconsistent with the statement given by the individual who accusedplaintiff, and arguably implicated that individual in the shooting, failed to make a complete andfull statement of facts to the District Attorney (see Colon, 60 NY2d at 82-83).Furthermore, the jury may have reasonably determined that the officer otherwise had initiallyacted in bad faith by arresting plaintiff solely on the basis of a less than credible accusation, andthat the evidence showing that the investigating officer had previously arrested plaintiff and hadreferred to him at that time as "an animal," supported the finding of malice (see Maskantz v Hayes, 39 AD3d211, 215 [2007]).
However, we modify to the extent indicated because the award of damages on the false arrestclaim, even as reduced by the trial court from $2,700,000 to $500,000, deviates materially fromwhat would be reasonable compensation for the 20 hours plaintiff spent in custody between hisarrest and arraignment (CPLR 5501 [c]; see e.g. Landow v Town of Amherst, 49 AD3d 1236 [2008];Roundtree, 208 AD2d at 407; Musto v Arakel, 184 AD2d 243 [1992]).Concur—Mazzarelli, J.P., Saxe, Nardelli, DeGrasse and Freedman, JJ. [See 18Misc 3d 1136(A), 2008 NY Slip Op 50326(U).]