Sital v City of New York

[*1] Sital v City of New York 2008 NY Slip Op 50326(U) [18 Misc 3d 1136(A)] Decided on January 31, 2008 Supreme Court, Bronx County Schachner, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 31, 2008
Supreme Court, Bronx County

Keiwan Sital, Plaintiff,

against

City of New York, Defendant.



7058/03



Appearances:

Plaintiff: Irom, Wittels, Freund, Berne and Serra, P.C.

By: Andrea Freund, Esq.

Defendant: Michael A. Cardozo, Corporation Counsel of the City of New York

By: Steven M. Koulish, Assistant Corporation Counsel

Larry S. Schachner, J.

Plaintiff commenced this action seeking damages for false arrest, false imprisonment and malicious prosecution, based upon his arrest on November 2, 2001 for assault which later became a murder charge for acts allegedly committed on the evening of October 31, 2001. Plaintiff was incarcerated for 333 days. The charges remained pending for nearly 8 more months after plaintiff was released from custody. On June 4, 2003 all charges were dismissed on the motion of the Bronx County District Attorney. After trial in this action, the jury rendered a verdict in favor of plaintiff, awarding damages to plaintiff in the sum of 2.7 million dollars for false arrest and 7.1 million dollars for malicious prosecution.

Defendant, the City of New York (City) now moves pursuant to CPLR 2221 and 4404 (a) for an order (1) setting aside the jury's verdict on liability as a matter of law, or, in the alternative, (2) setting aside the jury's verdict and ordering a new trial as the jury's liability verdict is against the weight of the evidence, or, in the alternative, (3) dismissing the malicious prosecution claim for failure to prove proximate cause, or, in the alternative, (4) setting aside the damages verdict and ordering a new trial on damages as the jury award was excessive and contrary to the weight of the evidence, and for other related relief. Plaintiff opposes the motion.The City's renewal of its trial motion to dismiss the complaint for failure to establish a prima facie case or for a directed verdict is denied as the court adheres to its original decision on the record. The court will now address defendant's request to set aside the verdict as against the weight of the evidence or set [*2]aside the award for damages on the ground that the award is excessive or for a new trial on damages.

A court may set aside a verdict where the verdict is contrary to the weight of the evidence or in the interest of justice. CPLR 4401 (a), 5501 (c). However, "a jury verdict should not be set aside as against the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence." McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 206 (1st Dept 2004) (citations omitted). Moreover, "issues of credibility are for the jury, which had the opportunity to observe the witnesses, and its resolution of credibility issues is entitled to deference." Laham v Chambi, 34 AD3d 374, 375 (1st Dept 2006) (citations omitted). The standard of review for whether a jury verdict should be set aside as excessive or inadequate is whether the award "deviates materially from what would be reasonable compensation." CPLR 5501 (c).

In an action for false arrest based upon an arrest and imprisonment without a warrant, "the defendant has the burden of proving legal justification [probable cause] as an affirmative defense." Broughton v State of New York, 37 NY2d 451, 458 (1975) (citations omitted). An arrest made without a warrant raises a presumption that it is unlawful and the defendant has the burden of proving justification, including "reasonable cause" to arrest. Smith v County of Nassau, 34 NY2d 18, 23 (1974) (citations omitted). Justification may be established by a showing that the arrest was based on probable cause at the time of the arrest. Broughton v State of New York, 37 NY2d 451 (1975).Probable cause is defined as a good faith belief based on such grounds as would induce an ordinarily prudent and cautious person, under the circumstances, to believe plaintiff had committed a crime. Smith v County of Nassau, 34 NY2d 18 (1974) (citation omitted). "Although information provided by anidentified citizen accusing another individual of the commission of a specific crime is sufficient to provide the police with probable cause to arrest, the failure to make further inquiry when a reasonable person would have done so may be evidence of lack of probable cause." Carlton v Nassau County Police Dept., 306 AD2d 365, 366 (2d Dept 2003) (citations omitted).

The elements of a cause of action for malicious prosecution are: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice. Maxwell v City of New York, 156 AD2d 28, 33 (1st Dept 1990) (internal quotation marks omitted) (citation omitted).

Generally, on causes of action for malicious prosecution,

"Once a suspect has been indicted ... the grand jury indictment

creates a presumption of probable cause to believe that the suspect

committed the crime. That presumption can be overcome by a

showing that the conduct of the police deviated so egregiously

from acceptable police activity as to demonstrate an intentional

or reckless disregard for proper procedures.' The presumption

may also be overcome by a showing that the police failed to make

further inquiry when a reasonable person would have done so' and

that failure may evidence lack of probable cause to arrest.' Malice

may be shown by proof that probable cause was lacking or that the [*3]

conduct was reckless or grossly negligent."

Haynes v City of New York, 29 AD3d 521, 523 (2d Dept 2006) (emphasis added) (citations omitted).

In the instant matter, plaintiff adduced evidence at trial which showed, among other things, that the investigation of the lead detective, Detective Pedro Espana, deviated from proper police procedures so much that it "demonstrate[d] an intentional or reckless disregard for proper procedures." id. (citation omitted). At trial, Detective Espana conceded, among other things, that the detectives never interviewed any of the witnesses who called 911 at the time of the shooting. Detective Espana also acknowledged at trial that it would have been important to interview all of the individuals named or described in Alvin Cruzado's witness statements before he made an arrest, but he did not do so. Detective Espana agreed, at trial, that none of the physical evidence connected plaintiff to the crime. In addition, the evidence adduced at trial showed that there were times during the investigation when Detective Espana failed to make further inquiry when a reasonable person would have done so. Detective Espana admitted that statements from the eyewitness, Blake Dotel, were inconsistent with the statements of witness Alvin Cruzado but he did not recall ever sharing these inconsistencies with anyone, including the District Attorney. Blake Dotel's statements not only contradicted Alvin Cruzado's version of events but implicated Alvin Cruzado as a participant in the shooting and may have resulted in Keiwan Sital's release and Alvin Cruzado's arrest. Thus, the jury could have reasonably concluded that the presumption was overcome and the requisite malice demonstrated. id. (citation omitted). Therefore, the jury's finding in favor of the plaintiff on the causes of action alleging false arrest and malicious prosecution was supported by legally sufficient evidence and was not contrary to the weight of the evidence. See id.

With regard to the question of the damages awarded, they were excessive and deviated materially from what would constitute reasonable compensation. See CPLR 5501 (c). In Haynes v City of New York, 29 AD3d 521 (2d Dept 2006), the plaintiff was falsely arrested and incarcerated on drug charges for nearly four months before being released on bail. Seven months later the charges were dismissed after it was determined that plaintiff was misidentified as the drug seller. A jury awarded plaintiff $250, 000 for his false arrest claim and 1.75 million dollars for his malicious prosecution claim. The awards were not reduced by thetrial court. Only the malicious prosecution claim was appealed as excessive and was reduced to 1 milliondollars. In Vitale v Hagan, 132 AD2d 468 (1st Dept 1987), plaintiff was arrested for assault and resisting arrest based on an altercation between plaintiff and a police sergeant after a minor automobile accident. Plaintiff was never incarcerated but the charges remained pending for eight and one-half months. A jury awarded plaintiff $750,000 for the malicious prosecution portion of his action whichwas affirmed on appeal. However, "reliance upon case precedent alone is virtually impossible, given the differentinjuries and circumstances in each case." Launders v Steinberg, 39 AD3d 57, 72 (1st Dept 2007) (citation omitted).

At the time of his arrest, plaintiff was a senior in high school, a "B" student and was among the twelve players who made All City in basketball. Plaintiff voluntarily went to the police precinct to cooperate in the investigation of a crime he knew he did not commit, and which he thought, at the time, was an assault. Plaintiff was arrested and arraigned for murder [*4]within approximately 20 hours and incarcerated at Rikers Island for approximately 11 months. He was released from custody on bail while the charges remained pending for 8 more months until ultimatelyall of the charges were dismissed on the motion of the Bronx District Attorney onJune 4, 2003. In addition to the indignity, deprivation and trauma of being in jail, plaintiff suffered physical injuries from other inmates. Plaintiff's mother testified at trial that when he returned home he was "a changed person" and "a little shell shocked." At trial, plaintiff testified that even to the present day he does not feel readjusted.

Accordingly, defendant's motion is granted only to the extent of ordering a new trial on the issue of damages unless plaintiff stipulates to accept a reduction in the jury's award of damages to the sum of $500,000 as to the cause of action for false arrest and 1.6 million dollarsas to the claim for malicious prosecution within thirty (30) days of service of a copy of this order with notice of entry.

This constitutes the decision and order of the court.

___________________________LARRY S. SCHACHNER, J.S.C.

Dated: January 31, 2008