Feldman v. Town of Bethel

• Decision Date: 06 December 1984
• Citation: 484 N.Y.S.2d 147,106 A.D.2d 695
• Parties: Bert FELDMAN, Respondent, v. TOWN OF BETHEL et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 147

484 N.Y.S.2d 147

106 A.D.2d 695

Bert FELDMAN, Respondent, v. TOWN OF BETHEL et al., Appellants.

Supreme Court, Appellate Division,

Third Department.

Dec. 6, 1984.

Appelbaum, Eisenberg, Bauman & Appelbaum, Liberty (Bertram W. Eisenberg, Liberty, of counsel) for appellants.

Robert Herrick, Wurtsboro (Stephen L. Oppenheim, Monticello, of counsel), for respondent.

Before MAHONEY, P.J., and MAIN, MIKOLL, LEVINE and KANE, JJ.

MEMORANDUM DECISION.

Appeal (1) from a judgment of the Supreme Court in favor of plaintiff, entered June 29, 1983 in Sullivan County, upon a verdict rendered at Trial Term, and (2) from an order of said court, entered May 16, 1983 in Sullivan County, which denied defendants' motion to set aside the verdict.

On February 6, 1980, plaintiff, then a 57-year-old senior editor of the Sullivan County Democrat, attended a meeting of the Town Board of the Town of Bethel in Sullivan County. Plaintiff, who had received information from the Executive Director of the State Committee on Public Access to Records (now State Committee on Open Government) and was of the view that he could legally tape record the town board meeting, had a tape recorder, with which he planned to tape record the meeting. Defendant George Neuhaus, Supervisor of the Town of Bethel, apparently met with plaintiff prior to the meeting and informed him that he would not be permitted to tape record the meeting. The tone and precise content of this meeting was disputed.

As the meeting convened, plaintiff turned the tape recorder on. A transcript of the tape reveals that Neuhaus then inquired whether the tape recorder was on and, after plaintiff stated that the recorder was operating, indicated that the board desired that the meeting not be taped. After plaintiff protested, defendant Neuhaus directed the town constable to take whatever steps were necessary but that an arrest was not necessary to get the tape recorder. Plaintiff insisted on exercising his rights and remaining with the tape recorder or, as plaintiff put it, "You have to arrest me." The constable then informed plaintiff that he would be arrested if he persisted and, when plaintiff still refused to leave or turn the recorder off, plaintiff was arrested and charged with disorderly conduct. Plaintiff was eventually tried and acquitted.

As a result of this incident, plaintiff commenced this action for false imprisonment based on false arrest and malicious prosecution, claiming that he lost his job, suffered damage to his reputation, and was unable to find new work due to the incident. At the conclusion of the trial, defendants' motion for a directed verdict was denied and the jury returned a verdict in favor of plaintiff in the amount of $35,000 for compensatory damages and $65,000 for punitive damages, the latter award being against defendant Neuhaus alone (see Sharapata v. Town of Islip, 56 N.Y.2d 332, 452 N.Y.S.2d 347, 437 N.E.2d 1104). Defendants' motion to set aside the verdict as contrary to the weight of the evidence and excessive was denied. Plaintiff's motion to increase the ad damnum clause regarding punitive damages from $50,000 to $65,000 was granted and a final judgment was entered. This appeal by defendants followed.

Initially, we find no merit to defendants' claim that the trial court erred in failing to find, as a matter of law, that there was probable cause for plaintiff's arrest. Whether probable cause existed depends on whether there were "such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty" (Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248). Although plaintiff did apparently have the authority to tape record, in an unobtrusive manner, a public meeting (see, e.g., People v. Ystueta, 99 Misc.2d 1105, 418 N.Y.S.2d 508; Committee on Public Access to Records, Advisory Opinion on Open Meetings Law, No. 380, Sept. 20, 1979; No. 367, Aug. 15, 1979; see, also, 1980 Opns.Atty.Gen. 145), plaintiff could not, with intent to cause public inconvenience, annoyance or alarm and without lawful authority, disturb any lawful assembly or meeting of persons (see Penal Law, § 240.20, subd. 4). In light of the facts that plaintiff had authority to tape record the meeting and there is a dispute over the nature and content of the conversation which occurred prior to the meeting between plaintiff and defendant Neuhaus, it cannot be said, as a matter of law, that there was probable cause to arrest plaintiff. Accordingly, the trial court properly left to the jury the issue of determining whether a reasonably prudent person in similar circumstances would believe plaintiff was guilty and, thus, whether there was probable cause. We further reject defendants' argument that the trial court erred in submitting the issue of malice to the jury, inasmuch as malice may be inferred from a finding of no probable cause (Martin v. City of Albany, 42 N.Y.2d 13, 17, 396 N.Y.S.2d 612, 364 N.E.2d 1304) and there was, as discussed above, no error in submitting the issue of probable cause to the jury.

We also disagree with defendants' claim that the false imprisonment cause of action should have been dismissed because plaintiff voluntarily subjected himself to arrest. Plaintiff's version of the incident is that although he did not resist being arrested, he did not voluntarily submit to the arrest and he intended to exercise his rights to stay at and tape record the meeting. It was within the province of the jury to decide whether plaintiff voluntarily accompanied the town constable. Defendants' reliance on Farina v. Saratoga Harness Racing Assn., 20 A.D.2d 750, 246 N.Y.S.2d 960, is misplaced, for the plaintiff therein voluntarily accompanied the defendant's security guards to clear himself, which is not the situation in the instant case.

We further find that it was not error for section 63 of the Town Law and section 95 of the Public Officers Law ^* to have been read to the jury, for these statutes were relevant as to plaintiff's perception of his right to tape record the meeting. Likewise, the work expectancy and life expectancy tables were relevant to the issue of damages. There was also no impropriety in plaintiff making a "unit of time" argument in his summation, inasmuch as no specific monetary value for each unit was suggested (Tate v. Colabello, 58 N.Y.2d 84, 88, 459 N.Y.S.2d 422, 445 N.E.2d 1101), or in stating the amount demanded as damages, especially considering the jury instructions on damages (id. at 87-88, 459 N.Y.S.2d 422, 445 N.E.2d 1101).

We also find no error in the omission of a portion of the pattern jury instruction on malicious prosecution (see 2 NY PJI 3:50 p. 795), inasmuch as the charge given properly conveyed to the jury the substance of the rule and there is no requirement that the pattern jury instructions be explicitly followed (see Ellis v. Di Chiara, 38 A.D.2d 780, 780-781, 328 N.Y.S.2d 36). Moreover, the trial court was correct to charge on punitive damages for the jury was properly considering whether defendants acted with malice as part of the malicious prosecution cause of action (see Nardelli v. Stamberg, 44 N.Y.2d 500, 503, 406 N.Y.S.2d 443, 377 N.E.2d 975). It was also proper not to charge as defendants requested on the false imprisonment issue since defendants' request presented a biased view of the facts. The court's failure to submit special findings to the jury cannot be deemed an abuse of discretion (see 8 Carmody-Wait 2d, N.Y.Prac., § 58:12, p. 329). We further find no error in the trial court's refusal to charge that the town attorney's advice concerning the propriety of tape recording the town board meeting could be considered to negate any malice on defendants' part. The record reveals that the town attorney had given advice only on the issue of whether the town clerk could use a tape recorder at town meetings. Because there was no evidence that the town attorney had given advice pertaining to the situation giving rise to the instant action, it was proper for the trial court to refuse to charge that the town attorney's advice could be considered to negate malice.

Finally, we are of the view that the verdict was excessive and must be modified. Considering the facts and background of this case, the $35,000 compensatory damage award must be reduced to $15,000 (see ...