Feinberg v. Saks & Co.

• Decision Date: 28 September 1981
• Citation: 443 N.Y.S.2d 26,83 A.D.2d 952
• Court: New York Supreme Court — Appellate Division
• Parties: Doris FEINBERG, Respondent, et al., Plaintiff, v. SAKS & COMPANY et al., Appellants, et al., Defendant.

Page 26

443 N.Y.S.2d 26

83 A.D.2d 952

Doris FEINBERG, Respondent, et al., Plaintiff, v. SAKS & COMPANY et al., Appellants, et al., Defendant.

Supreme Court, Appellate Division,

Second Department.

Sept. 28, 1981.

A. Paul Goldblum, Brooklyn, for appellant Saks & Company.

Henderson & Brennan, White Plains (Francis J. Henderson, White Plains, of counsel), for appellant Norma Sanderson.

Greenspan & Jaffe, White Plains, (Leon J. Greenspan and Joseph D. DeSalvo, White Plains, of counsel), for respondent.

Before LAZER, J. P., and MARGETT, O'CONNOR and THOMPSON, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for, inter alia, false arrest and imprisonment and malicious prosecution, defendants Saks & Company and Norma Sanderson separately appeal from so much of a judgment of the Supreme Court, Westchester County, entered July 15, 1980, as is in favor of plaintiff Doris Feinberg upon her cause of action for malicious prosecution, in the principal amount of $105,000, upon a jury verdict. The appeal brings up for review an order of the same court, dated June 27, 1980, which denied the motion of said defendants to set aside the verdict on the ground that it was inconsistent with the jury's verdict in favor of them on plaintiff Doris Feinberg's cause of action for "false detention".

Judgment reversed insofar as appealed from and order reversed, on the law, with one bill of costs payable jointly to appellants, motion to set aside the verdict in favor of plaintiff Doris Feinberg is granted, and the cause of action for malicious prosecution is dismissed.

The case arises out of an incident which occurred on June 17, 1976 at the store of defendant Saks & Company. At that time, defendants Sanderson and Proft (not a party to this appeal) followed Doris Feinberg (hereafter plaintiff) from the store into the parking lot where they took her into custody. It was their contention that they observed plaintiff steal two shirts by tearing the price tags from them and asporting them from the store in a shopping bag. On Sanderson's complaint, plaintiff was charged with petit larceny.

At a subsequent criminal trial, plaintiff was acquitted of that charge. Subsequently, this action was commenced. General verdicts were returned in favor of appellants on the cause of action for "false detention" and in favor of plaintiff on her cause of action for malicious prosecution. On their motion to set aside the jury's verdict against them and on this appeal, appellants claim that under the facts and circumstances of this case such verdicts are inconsistent. We agree, and accordingly reverse.

At the outset, we note the general rule that a defendant who has "probable cause" to subject a plaintiff to a "reasonable detention" has a complete defense to a cause of action for false arrest or imprisonment and that the existence of such "probable cause" will serve to bar an action for malicious prosecution as well (see Mullen v. Sibley, Lindsay & Curr Co., 71 A.D.2d 21, 421 N.Y.S.2d 490, revd. on other grounds 51 N.Y.2d 924, 434 N.Y.S.2d 982, 415 N.E.2d 971). Of course, should some intervening fact become known to defendant between the time of detention and the time of prosecution which would serve to exonerate the plaintiff, any further prosecution at that point would be wanting of probable cause. Under such circumstances, an action for malicious prosecution would lie even though the plaintiff was not falsely imprisoned or detained (see Oakley v. City of Rochester, 71 A.D.2d 15, 421 N.Y.S.2d 472, affd. 51 N.Y.2d 908, 434 N.Y.S.2d 977, 415 N.E.2d 966).

In reviewing the facts presented at the trial, this court finds, as a matter of law and without resorting to mere speculation, that no such intervening circumstance occurred which would vitiate appellants' probable cause to detain and subsequently prosecute the plaintiff. Thus, the general rule as espoused in Mullen (supra) must apply and the verdicts for plaintiff on her cause of action for malicious prosecution and against her on her cause of action for "false detention" cannot be reconciled. Having found probable cause to detain plaintiff the jury was obliged to find (under the instant facts) that appellants also had probable cause to prosecute. Hence, we reverse and dismiss the cause of action for malicious prosecution.

LAZER, J. P., and O'CONNOR and THOMPSON, JJ., concur.

MARGETT, J., concurs in part and dissents in part, with the following memorandum:

I agree with my colleagues that, on this record, the verdict in favor of Doris Feinberg (plaintiff) upon her cause of action for malicious prosecution (the plaintiff's verdict) is inconsistent with the verdict in favor of appellants upon her cause of action for false detention (the defendants' verdict). Accordingly, I join them insofar as they have voted to grant appellants' motion to set aside the plaintiff's verdict and to reverse so much of the judgment as awards her damages. However, I do not agree that the proper resolution of this appeal includes either dismissing the complaint or permitting the defendants' verdict to stand. Accordingly, I also vote (1) to reverse the judgment insofar as it dismisses plaintiff's cause of action for false detention and (2) to direct that a new trial be had with respect to both causes of action.

Absent a conclusion by this court that at trial plaintiff failed to establish a prima facie case of malicious prosecution, I perceive no legal basis for depriving plaintiff of her jury verdict without affording her a new trial on that cause of action. Plaintiff's cause of action seeking money damages as a result of malicious prosecution is triable by jury as of right (see Martin v. City of Albany, 42 N.Y.2d 13, 396 N.Y.S.2d 612, 364 N.E.2d 1304). Accordingly, under the circumstances of this case, unless she failed to establish a prima facie case, plaintiff, who prevailed on that cause of action at trial, has a constitutional right to have the merits thereof finally determined at a jury trial and not in this court (see Martin v. City of Albany, supra, p. 19, 396 N.Y.S.2d 612, 364 N.E.2d 1304). Since this court has not concluded that plaintiff failed to establish a prima facie case, but is reversing on the sole ground of inconsistency of verdicts, I respectfully dissent from so much of the order of this court as dismisses the complaint.

Moreover, under the particular circumstances of this case, I am also of the view that there should be a reversal and a new trial with respect to so much of the judgment as is in appellants' favor upon plaintiff's cause of action for false detention, notwithstanding plaintiff's failure to cross-appeal from so much of the judgment as dismissed that cause of action. Where a jury returns general verdicts which are inconsistent, it is well-settled that it is not the function of a court to select what it perceives to be the "correct" verdict and render judgment accordingly (Gray v. Brooklyn Hgts. R. R. Co., 175 N.Y. 448, 67 N.E. 899). ^* Indeed, when Trial Term did so in rendering judgment for the defendant in an action for personal injuries where the jury had found against the plaintiff infant but for his mother on the latter's derivative claim, the Appellate Division reversed, with the following language:

"Who can tell what the jury really intended here? In the circumstances, before the verdict had been finally recorded, the jury should have been advised that they could not render inconsistent verdicts, and then returned to the juryroom for further deliberation. As this was not done, the trial court should have set aside the inconsistent verdicts and directed a new trial. The correct procedure in such case is clearly set forth in Gray v. Brooklyn Heights R. R. Co. (175 N.Y. 448, at p. 450 where the court said: 'The practice of trying, with the consent of all concerned, the wife's action for personal injuries caused by negligence and the husband's action for loss of services owing to the same injury, at the same time and submitting them to the same jury upon the same evidence, should not be discouraged, for it saves the time of the court and witnesses and reduces the expenses of the parties. When, however, the two actions are thus tried together and inconsistent verdicts are rendered, we incline to the view that sound practice requires both verdicts to be set aside at once, without attempting by analysis of the evidence, or otherwise, to discover whether either should be allowed to stand. No other course is safe, for it cannot be told with reasonable certainty what facts the jury found.' "

(Reilly v. Shapmar Realty Corp., 267 App.Div. 198, 200, 45 N.Y.S.2d 356.)

As the foregoing demonstrates, probably at more length than is strictly required, had plaintiff cross-appealed, the only appropriate disposition of the appeals would have been a reversal and new trial with respect to both of the causes of action that were submitted to the jury (see, e. g., Adams v. New York City...