| Britt v Monachino |
| 2010 NY Slip Op 04008 [73 AD3d 1462] |
| May 7, 2010 |
| Appellate Division, Fourth Department |
| Henry Britt, Respondent-Appellant, v Carrie Monachino et al.,Appellants-Respondents. (Appeal No. 2.) |
—[*1] Law Office of David J. Clegg, Kingston (David J. Clegg of counsel), forplaintiff-respondent-appellant.
Appeal and cross appeal from a judgment of the Supreme Court, Monroe County (ThomasA. Stander, J.), entered August 6, 2009 in an action for false arrest and malicious prosecution.The judgment awarded plaintiff damages upon a jury verdict.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff commenced this action against defendants Wal-Mart Stores, Inc.(Wal-Mart) and one of its managers, asserting causes of action for, inter alia, false arrest andmalicious prosecution. Plaintiff had been arrested and charged with petit larceny after defendantsreported to the police that he was involved in the theft of four tires from Wal-Mart's Tire LubeExpress Department, where he was employed as a service manager. A trial was held, followingwhich the jury returned a verdict in favor of plaintiff on both causes of action and awarded himcompensatory and punitive damages totaling approximately $106,000, with costs anddisbursements.
With respect to the appeal taken by defendants, we reject their contention that the evidenceis legally insufficient to establish the requisite element of lack of probable cause with respect toboth causes of action. Although defendants are correct that "[p]robable cause to believe that aperson committed a crime is a complete defense to [plaintiff's causes of action for] false arrestand malicious prosecution" (Fortunato vCity of New York, 63 AD3d 880, 880 [2009]; see Quigley v City of Auburn,267 AD2d 978, 979 [1999]), we agree with plaintiff that the evidence is legally sufficient toestablish that there was no probable cause, particularly in view of the lack of direct evidence thatplaintiff committed the larceny of the four tires or profited therefrom.
We also reject defendants' contention that the evidence is legally insufficient with respect tothe requisite element of malice in connection with the cause of action for malicious prosecution."The 'actual malice' element of a malicious prosecution [cause of] action does not [*2]require a plaintiff to prove that the defendant[s were] motivated byspite or hatred . . . Rather, it means that the defendant[s] must have [instigated thecommencement of] the prior criminal proceeding due to a wrong or improper motive, somethingother than a desire to see the ends of justice served" (Nardelli v Stamberg, 44 NY2d 500,502-503 [1978]; see Du Chateau v Metro-North Commuter R.R. Co., 253 AD2d 128,132 [1999]). Having found that there was no probable cause, the jury was thus also entitled tofind malice based on the absence of probable cause, together with evidence that Wal-Mart'spolicy was to prosecute employee thefts whenever possible and the evidence at trial concerningthe public nature of plaintiff's arrest. Thus, contrary to defendants' contention, the evidence ofmalice is legally sufficient to support the finding of the jury that defendants were motivated by"something other than a desire to see the ends of justice served" (Nardelli, 44 NY2d at503).
Finally, with respect to defendants' appeal, we reject defendants' contentions that thefindings with respect to liability and the award of punitive damages are against the weight of theevidence. It cannot be said that the verdict could not have been reached on any fair interpretationof the evidence (see generally Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]).
We have reviewed the contentions raised by plaintiff on his cross appeal and conclude thatthey are unpreserved and, in any event, that they are without merit. Present—Centra, J.P.,Peradotto, Lindley, Sconiers and Gorski, JJ.