Loomis v. City of Binghamton
| Decision Date | 13 December 1973 |
| Parties | Patricia Snow LOOMIS, an Infant by William R. Loomis, Sr., Her General Guardian, Respondent, v. CITY OF BINGHAMTON, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Carmien & Young, Binghamton (Donald C. Carmien, Binghamton, of counsel), for respondent.
Thomas A. Muscatello, Corp. Counsel, Binghamton (Robert R. Clobridge, Binghamton, of counsel), for appellant.
Before STALEY, J.P., and GREENBLOTT, SWEENEY, REYNOLDS and KANE, JJ.
Appeal from a judgment of the County Court of the County of Broome, entered March 16, 1973, upon a jury verdict rendered at a Trial Term in favor of plaintiff.
On June 26, 1969, two police officers employed by defendant, City of Binghamton, attempted to execute a warrant of arrest on Collette Snow, plaintiff's sister, at their residence. Although plaintiff did not match the description in the warrant and she advised the officers that she was Patricia, not Collette, and others at the scene also similarly advised them, the officers took her into custody and brought her to the Binghamton Police Station where she was detained for two and one-half hours until her sister appeared. Thereafter, plaintiff instituted this action against the City of Binghamton to recover compensatory and punitive damages for false arrest. The jury awarded plaintiff $2,000 in compensatory damages and $4,000 in punitive damages.
Defendant now contends that punitive damages are not recoverable against a municipal corporation and, in any event, there is no evidence that the employer participated in, condoned or ratified the acts of the police officers. Defendant, however, made no exception to the trial court's charge to the jury on the issue of punitive damages which clearly placed before the jury the issue of whether a Police Captain and a Police Lieutenant were (1) aware of the facts concerning her arrest; (2) occupied managerial positions within the city; and (3) while in these positions, condoned the actions of the two police officers who took plaintiff into custody. Having failed to except to the charge, that issue was not preserved for appeal. (Ehrets v. City of Binghamton, 28 A.D.2d 1068, 284 N.Y.S.2d 8; Gross v. City of Binghamton, 43 A.D.2d 653, 350 N.Y.S.2d 363 (1973).)
On the trial, at the close of plaintiff's case, the defendant moved to amend its answer to plead an affirmative defense of justification. This motion was denied on the grounds that the facts sought to be pleaded were within the knowledge of defendant from the inception of the case, and that it was not unitl the day of the trial that anyone connected with the defense thought that an affirmative defense should be pleaded. Thereafter, the court rejected the offer of evidence in justification. The granting or denial of a motion for leave to amend is within the sound discretion of the court. While leave to amend should ordinarily be freely granted, the denial of such a motion made upon the trial, when the facts upon which it is based were known from the inception of the case, does not constitute an abuse of discretion. (Procho v. Procho, 30 A.D.2d 615, 290 N.Y.S.2d 696; Annacchino v. Annacchino, 61 Misc.2d 636, 306 N.Y.S.2d 603.)
Defendant's contention that it was not necessary to plead justification as an affirmative defense is without merit. Subdivision (b) of CPLR 3018 provides that '(a) party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading * * *.' While this statute lists certain matters as examples, it provides that 'The application of this subdivision shall not be confined to the instances enumerated.' Justification in mitigation of damages is not enumerated but would come within the meaning of the statute and must, therefore, be pleaded if a party intends to avail itself of that defense. (Cf. Millea v. City of New York, 25 Misc.2d 369, 204 N.Y.S.2d 260.)
The final contention of defendant is that the court committed...
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