| McPherson v City of New York |
| 2014 NY Slip Op 07989 [122 AD3d 809] |
| November 19, 2014 |
| Appellate Division, Second Department |
[*1]
| Errol McPherson, Appellant, v City of NewYork et al., Respondents. |
Papa DePaola & Brounstein, Bayside, N.Y. (Robert Dembia, Michael E. Soffer,and John R. DePaola of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela SeiderDolgow, Margaret G. King, and Bradley M. Wanner of counsel), for respondents.
In an action, inter alia, to recover damages for false arrest, the plaintiff appeals froma judgment of the Supreme Court, Kings County (Vaughan, J.), entered November 8,2012, which, upon a jury verdict in his favor on the issue of liability on the cause ofaction alleging false arrest, a jury verdict on the issue of damages awarding him nodamages, and upon an order of the same court dated May 2, 2012, denying his motionpursuant to CPLR 4404 (a) to set aside the jury verdict on the issue of damages and for anew trial on that issue, is in favor of the defendants and against him.
Ordered that the judgment is reversed, on the law, on the facts, and in the exercise ofdiscretion, with costs, the plaintiff's motion pursuant to CPLR 4404 (a) to set aside thejury verdict on the issue of damages and for a new trial on that issue is granted, the orderis modified accordingly, and the matter is remitted to the Supreme Court, Kings County,for a new trial on the issue of damages.
The plaintiff was arrested on July 2, 2004, allegedly for unlawful possession ofmarijuana. The uncontroverted trial testimony reflects that, among other things, theplaintiff was fingerprinted, confined for over 24 hours, and strip-searched prior to hisarraignment. Due to his arrest, the plaintiff, who is a teacher, was precluded fromperforming his teaching duties until the charge against him was dismissed monthslater.
Thereafter, the plaintiff sued the City of New York and the arresting officer alleging,inter alia, false arrest. A jury determined that no reasonable cause existed for his arrest,but awarded him no damages. The plaintiff moved pursuant to CPLR 4404 (a) to setaside the verdict on the issue of damages as against the weight of the evidence and asinconsistent with the verdict on the issue of liability, and for a new trial on the issue ofdamages. The Supreme Court denied the motion, based solely on the ground that theplaintiff failed to attach a trial transcript to his motion.
The Supreme Court improperly denied the plaintiff's motion for failure to include atrial transcript. As an initial matter, while numerous cases make clear that an appeal maybe dismissed for failure to include a trial transcript (see Smith v Imagery Media, LLC, 95 AD3d 1204, 1205[2012]; Nakyeoung Seoung vVicuna, 38 AD3d 734, 735 [2007]; Gerhardt v New York City Tr. Auth., 8 AD3d 427, 427[2004]; see also CPLR 5526), the plaintiff was not on notice that a transcript wasrequired at the [*2]trial court level. In any event, this casedid not involve complex issues, only two witnesses testified, the trial was not lengthy, thetestimony with respect to damages was generally undisputed, and the same judge whopresided over the trial was in receipt of the plaintiff's motion pursuant to CPLR 4404 (a).Accordingly, this was not a situation where the absence of a trial transcript precludedmeaningful review (cf. Gorbea vDeCohen, 118 AD3d 548, 549 [2014]).
Upon consideration of the merits of the plaintiff's motion, we agree that the verdicton damages must be set aside as against the weight of the evidence. "As a general rule,the measure of damages for false arrest and confinement is such a sum as will fairly andreasonably compensate the injured person for injuries caused by the defendant's wrongfulact. Such sum may only include damage up to the time of arraignment, since subsequentdamages are attributable to the cost of malicious prosecution" (Hallenbeck v City ofAlbany, 99 AD2d 639, 640 [1984]). Compensatory damages for false arrest aretypically warranted even when the sole or primary injury suffered is loss of liberty (see Sital v City of New York,60 AD3d 465, 466 [2009]; Malte v State of New York, 125 AD2d 958,958-960 [1986]; Orndorff v De Nooyer Chevrolet, 117 AD2d 365, 369 [1986];Hallenbeck v City of Albany, 99 AD2d at 640; Woodard v City ofAlbany, 81 AD2d 947 [1981]; see also Kerman v City of New York, 374 F3d93, 125-126 [2d Cir 2004]).
Here, not only did the plaintiff testify to feeling violated and humiliated during hisordeal, but the unequivocal record evidence reflects that he was unlawfully confined forover 24 hours and strip-searched. Thus, the evidence on the issue of damages "sopreponderated in favor of the plaintiff that the jury could not have reached itsdetermination on any fair interpretation of the evidence" (Carter v New York City Health& Hosps. Corp., 47 AD3d 661, 663 [2008]; see Lolik v Big vSupermarkets, 86 NY2d 744, 745-746 [1995]). Accordingly, the matter must beremitted to the Supreme Court, Kings County, for a new trial on the issue ofdamages.
In light of our determination, we need not address the plaintiff's remainingcontentions. Rivera, J.P., Hall, Austin and Cohen, JJ., concur.