Wieder v. Home Depot U.S.A., Inc.
| Decision Date | 03 August 2022 |
| Docket Number | 2019-07022,Index No. 8676/14 |
| Citation | 208 A.D.3d 535,172 N.Y.S.3d 474 |
| Parties | Howard L. WIEDER, respondent-appellant, v. HOME DEPOT U.S.A., INC., et al., appellants-respondents, et al., defendants. |
| Court | New York Supreme Court — Appellate Division |
208 A.D.3d 535
172 N.Y.S.3d 474
Howard L. WIEDER, respondent-appellant,
v.
HOME DEPOT U.S.A., INC., et al., appellants-respondents, et al., defendants.
2019-07022
Index No. 8676/14
Supreme Court, Appellate Division, Second Department, New York.
Argued—April 18, 2022
August 3, 2022
Lewis Brisbois Bisgaard & Smith LLP, New York, NY (Nicholas Hurzeler, John Doody, and David Pollack of counsel), for appellants-respondents.
Brett H. Klein, Esq., PLLC (Sullivan Papain Block McGrath & Cannavo P.C., New York, NY [Brian J. Shoot ], of counsel), for respondent-appellant.
FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for malicious prosecution, battery, and false imprisonment, the defendants Home Depot U.S.A., Inc., and John Marrugo appeal, and the plaintiff cross-appeals, from a judgment of the Supreme Court, Kings County (Larry D. Martin, J.), dated May 2, 2019. The judgment, insofar as appealed from, upon a jury verdict on the issue of liability on the causes of action alleging battery and false imprisonment, and upon a jury verdict on the issue of damages awarding the plaintiff the principal sum of $1,800,000 for past pain and suffering relating to those causes of action, is in favor of the plaintiff and against those defendants in the principal sum of $1,800,000. The judgment, insofar as cross-appealed from, in effect, dismissed the cause of action alleging malicious prosecution and the purported cause of action alleging spoliation of evidence, and failed to award the plaintiff damages for lost earnings and punitive damages.
ORDERED that the judgment is reversed insofar as appealed from, on the facts and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of damages for past pain and suffering relating to the causes of action alleging battery and false imprisonment, unless, within 30 days after service upon the plaintiff of a copy of this decision and order with notice of entry, the plaintiff serves and files in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to reduce the verdict as to damages for past pain and suffering from the principal sum of $1,800,000 to the principal sum of $500,000, and to the entry of an appropriate amended judgment accordingly; in the
event that the plaintiff so stipulates, then the judgment, as so reduced and amended, is affirmed insofar as appealed from, without costs or disbursements; and it is further,
ORDERED that the judgment is affirmed insofar as cross-appealed from, without costs or disbursements.
On August 12, 2008, the plaintiff was arrested for assault in the third degree and harassment in the second degree based upon the report of the defendant John Marrugo, an employee of the defendant Home Depot, U.S.A., Inc. (hereinafter Home Depot), that the plaintiff struck a female customer at a Home Depot store. Subsequently, on September 23, 2008, the charges were dismissed. On August 5, 2009, the plaintiff commenced an action in the Supreme Court, Queens County, against, among others, Home Depot, Marrugo, the City of New York, and several police officers, asserting, inter alia, 42 USC § 1983 causes of action alleging false arrest and malicious prosecution. The action was removed to the United States District Court for the Eastern District of New York. In an order dated April 29, 2013, the District Court, inter alia, dismissed the federal claims against the City (see Wieder v. City of New York, 2013 WL 1810751, *14, 2013 U.S. Dist LEXIS 60890 [E.D.N.Y.] No. 09–CV–3914 (WFK)(VUP), affd 569 Fed.Appx. 28 [2d Cir.] ). The District Court dismissed the remaining state law claims, as it declined to exercise supplemental jurisdiction over them (see 2013 WL 1810751, *14, 2013 U.S. Dist LEXIS 60890 ). Thereafter, on October 16, 2013, the plaintiff commenced the instant action in the Supreme Court, Kings County, against, among others, Home Depot and Marrugo (hereinafter together the defendants), alleging, inter alia, causes of action to recover damages for malicious prosecution, battery, and false imprisonment. A jury trial was held in February 2019.
At the trial, testimony was elicited that the plaintiff entered the Home Depot store just as two customers who had been asked to leave for engaging in an altercation with store personnel were leaving. After the two customers blocked the plaintiff's path and the female customer twice asked, "What the f--- is your problem?" the plaintiff replied, "I'm just trying to get by you," and used the term "bitch." The plaintiff then felt a "huge bang" on the back of his skull, followed by punches to his arm, and heard "you called my wife a f---ing bitch." The plaintiff threw two punches back, striking the male customer. The female customer then pummeled the plaintiff with her fist and kicked him in the stomach, and he walked briskly away. The plaintiff was chased by the store security guard, Marrugo, who
grabbed the plaintiff by the left arm and wedged him against a fence. Marrugo held the plaintiff for between 30 and 60 seconds, and said "Home Depot security. Don't move." The plaintiff testified that it was "impossible to break free."
A police car arrived at the scene, and Marrugo told the officer that the plaintiff hit a female customer in the store with a shopping cart. The plaintiff was handcuffed and placed in the patrol car. The plaintiff was taken to the police stationhouse and fingerprinted.
At the time of his arrest, the plaintiff was employed as a court attorney for a Supreme Court Justice in Queens County, and was pursuing a nomination to the judiciary. The next day, he was taken to the courthouse and arraigned in an undershirt and jogging shorts, on a complaint sworn to by the arresting officer based upon statements the female customer made to the officer. At trial, the plaintiff claimed that his arrest derailed his judicial nomination. A witness who was a member of the independent judicial election qualification commission testified...
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