McPherson v. City of N.Y.

• Decision Date: 19 November 2014
• Docket Number: 2013-01057
• Citation: 997 N.Y.S.2d 158,2014 N.Y. Slip Op. 07989,122 A.D.3d 809
• Parties: Errol McPHERSON, appellant, v. CITY OF NEW YORK, et al., respondents.
• Court: New York Supreme Court — Appellate Division

122 A.D.3d 809

997 N.Y.S.2d 158

2014 N.Y. Slip Op. 07989

Errol McPHERSON, appellant

v.CITY OF NEW YORK, et al., respondents.

2013-01057

Supreme Court, Appellate Division, Second Department, New York.

Nov. 19, 2014.

Papa DePaola & Brounstein, Bayside, N.Y. (Robert Dembia, Michael E. Soffer, and John R. DePaola of counsel), for appellant.

Zachary W. Carter, CorporationCounsel, New York, N.Y. (Pamela Seider Dolgow, Margaret G. King, and Bradley M. Wanner of counsel), for respondents.

REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

Opinion

In an action, inter alia, to recover damages for false arrest, the plaintiff appeals from a 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 of action alleging false arrest, a jury verdict on the issue of damages awarding him no damages, and upon an order of the same court dated May 2, 2012, denying his motion pursuant to CPLR 4404 (a) to set aside the jury verdict on the issue of damages and for a new 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 of discretion, with costs, the plaintiff's motion pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages and for a new trial on that issue is granted, the order is 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 of marijuana.The uncontroverted trial testimony reflects that, among other things, the plaintiff was fingerprinted, confined for over 24 hours, and strip-searched prior to his arraignment.Due to his arrest, the plaintiff, who is a teacher, was precluded from performing his teaching duties until the charge against him was dismissed months later.

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 set aside the verdict on the issue of damages as against the weight of the evidence and as inconsistent with the verdict on the issue of liability, and for a new trial on the issue of damages.The Supreme Court denied the motion, based solely on the ground that the plaintiff failed to attach a trial transcript to his motion.

The Supreme Court improperly denied the plaintiff's motion for failure to include a trial transcript.As an initial matter, while numerous cases make clear that an appeal may be dismissed for failure to include a trial transcript (seeSmith v. Imagery Media, LLC,95 A.D.3d 1204, 1205, 945 N.Y.S.2d 133;Nakyeoung Seoung v. Vicuna,38 A.D.3d 734, 735, 830 N.Y.S.2d 911;Gerhardt v. New York City Tr. Auth.,8 A.D.3d 427, 427, 778 N.Y.S.2d 536;see alsoCPLR 5526 ), the plaintiff was not on notice that a transcript was required at the trial court level.In any event, this case did not involve complex issues, only two witnesses testified, the trial was not lengthy, the testimony with respect to damages was generally undisputed, and the same judge who presided 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 precluded meaningful review (cf.Gorbea v. DeCohen,118 A.D.3d 548, 549, 987 N.Y.S.2d 152 ).

Upon consideration of the merits of the plaintiff's motion, we agree that the verdict on damages must be set aside as against the weight of the evidence.“As a general rule, the measure of damages for false arrest...