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December 17, 1996

JRAE MASON, Plaintiff, against THE CITY OF NEW YORK, et al., Defendants.

The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 In July 1994, the plaintiff, Jrae Mason, was sitting on her stoop in Manhattan when she was approached by two men who believed that she was, or might have been, Audrey White Smith, who had jumped bail in Tuscaloosa, Alabama. This began an ordeal of several days during which Ms. Mason was confined and then taken against her will to Tuscaloosa, where she was released when the Alabama authorities determined that she was not Smith. She brought this action against a number of defendants under 42 U.S.C. § 1983 and on state law theories, in substance for false arrest. The jury returned substantial verdicts in Mason's favor against two related Bronx firms, Confidential Inquiries, Inc. ("CI") and Berretta Bonds Agency, Inc. ("BBA"), which were alleged to have employed the bounty hunter who caused Mason's arrest, and three officers of the police department of the Port Authority of New York and New Jersey, who allegedly acted wrongfully in connection with a portion of Mason's detention. The matter now is before the Court on defendants' post-verdict motions and for a determination of the effect, if any, of a prior settlement of related claims made by the City of New York.


 The chain of events that led to Mason's arrest and transport to Alabama began with the failure of one Audrey White Smith to appear as required for an Alabama court appearance, whereupon Alabama bondsmen sought to procure her return. Apparently believing that Smith had fled to Manhattan, they enlisted help in New York, although the evidence at trial was far from clear as to whose help they sought. Whatever the route, however, the assignment ultimately went to one Victor Melendez who, from time to time, apprehended defendants who had jumped bail.

 Melendez was acquainted with Darren Fuentes and Javier Mulinary, who were interested in getting into the bail enforcement business. He gave them such information as he had and sent them in search of Smith. On July 18, 1994, they came upon Mason sitting in front of her apartment building and thought she might be Smith. Although Mason denied being Smith, she produced a number of different pieces of identification, each bearing a different name. Fuentes and Mulinary then handcuffed her, taking her first to the local New York City Police precinct and then to Bronx Central Booking in an effort to establish her identity. They ultimately were directed to Manhattan Central Booking, and they and Melendez took Mason to that facility.

 Melendez took Mason inside and spoke to NYPD personnel. Mason was fingerprinted and the prints were sent to Albany. In the process, an on-line booking sheet, a prisoner transport slip, and other paperwork similar to the documents generated when the NYPD makes an arrest were produced by the NYPD on-line booking system. A civilian employee of the police department testified that after the fingerprint report arrived from Albany, he told Melendez that Mason was not the woman wanted in Alabama, although Melendez in a tape recorded statement received in evidence contended that he was told that Mason "is the one." In any case, Melendez emerged from Manhattan Central Booking with Mason and turned her over once again to Fuentes and Mulinary with instructions to hold her until the Alabama bondsmen arrived in New York to take custody of her.

 Mason brought this action against the City of New York, the Port Authority, the two Port Authority sergeants, a lieutenant who had been on duty that day, Melendez, Fuentes, Mulinary, Robert Berretta, and the two Bronx companies of which Berretta was the sole stock holder, CI and BBA. In essence, she charged all concerned with false imprisonment. The claim against Berretta, CI and BBA was based on the theory that Melendez had been employed by them and that they were responsible for his actions, as well as those of Fuentes and Mulinary. The City settled before trial for $ 145,000, and the case went to trial against the Port Authority, its officers, and Berretta and his companies. The fundamental issues at trial were whether the Port Authority officers had acted reasonably and whether Berretta and his companies were responsible for the actions of Melendez, Fuentes and Mulinary.

 At the conclusion of the plaintiff's case, the Court granted judgment as a matter of law dismissing the claims against Berretta. The jury returned a special verdict finding: (1) Melendez, Fuentes and Mulinary reasonably believed at the time of Mason's arrest that she was Audrey White Smith, (2) Melendez learned at Manhattan Central Booking that Mason was not Smith, (3) Melendez was an employee of both BBA and CI, (4) Melendez acted within the scope of his employment by both companies when he took Mason into and kept her in custody, (5) each of the three Port Authority officers kept Mason in custody, (6) none of the Port Authority officers reasonably believed that Mason had jumped bail and that Melendez was assisting in returning her to the appropriate court, (7) the amounts that would reasonably compensate Mason for the injury she suffered were (a) $ 50,000 for the period from Melendez' learning that she was not Smith until her arrival at the Port Authority police facility, (b) $ 100,000 for the two hour period during which she was held at the Port Authority facility, (c) and $ 150,000 for the period of days commencing with her departure from the Port Authority facility, and (8) Mason was entitled to punitive damages in the amount of $ 450,000 as against each of BBA and CI.

 The Motions

 BBA and CI now move to vacate the damage awards against them pursuant to FED. R. CIV. P.50(b) or for a new trial. They argue that they cannot be held liable under 42 U.S.C. § 1983 for the actions of Melendez, Fuentes and Mulinary, even if Melendez was employed by them, because there is no respondeat superior liability under Section 1983 and neither BBA nor CI authorized or acquiesced in the tortious conduct.

 The Port Authority officers move for judgment as a matter of law or for a new trial. They renew their Rule 50 motion, contending that they are entitled to judgment as a matter of law on the ground of qualified immunity. In the alternative, the Port Authority officers move for a new trial on the ground that the damages are excessive.

 The parties agreed to reserve to the Court the effect of the City's $ 145,000 settlement on the remaining defendants and the apportionment, if appropriate, of liability among the defendants.


 The BBA-CI Motions

 In arguing that there is no respondeat superior liability under Section 1983, a well-established proposition, BBA and CI overlook the essential fact that their liability rests equally on state law. Section 1983 affords a cause of action for false imprisonment where the defendants act under color of state law. See Zanghi v. Incorporated Village of Old Brookville, 752 F.2d 42, 45 (2d Cir. 1985). The elements of the claim, save for the color of state law requirement, are identical to those of the common law cause of action. Id. BBA and CI therefore are liable for the actions of Melendez, Fuentes and Mulinary under the doctrine of respondeat superior to whatever extent that doctrine would subject them to liability on the pendent state law claims. The question, therefore, is whether BBA and CI are entitled to judgment on the state law claims.

 The issue whether Melendez was an employee of the Berretta companies was hotly contested at trial. Berretta claimed that Melendez was an independent contractor. According to Berretta, Melendez was trying to go into business as a bail enforcement agent -- a bounty hunter -- but lacked sufficient resources to do so on his own. Berretta therefore allowed Melendez to use a desk in his store front in exchange for a promise that Melendez would pay him rent in the future when Melendez got his feet on the ground. Berretta claimed also that he hired Melendez from time to time, on a contingency basis, to find defendants for whom Berretta had procured bail bonds and who had failed to appear as required. The plaintiff, on the other hand, asserted that Melendez was an employee. The evidence, although perhaps thin, was sufficient to warrant submission of the issue to the jury. And the jury specifically found that Melendez was an employee. There is no basis for disturbing that finding.

 The jury found also that Melendez acted within the scope of his employment with regard to Mason. The plaintiff of course sought to suggest that the assignment to find Smith was an assignment that had come to BBA and CI and that Melendez had been working for them in making the arrest. Berretta denied any such thing, arguing that Melendez somehow had made his own deal with the Alabama bondsmen as part of his efforts to get his independent business off the ground. Unfortunately for the Berretta entities, however, the parties stipulated into evidence a tape recorded statement made by Melendez, who did not appear at trial, to the NYPD (PX 42A) in which Melendez stated that "the case was initially taken by telephone by one Pat Ritchie, who I believe still works for Berretta Bonding. The case was then assigned to me because it fell within my area of responsibility." He went on to say that he, Fuentes and Mulinary had been acting on behalf of BBA. The credibility of Melendez' statement plainly was for the jury to determine. The evidence therefore was sufficient to support the jury's verdict that Melendez and his associates acted within the scope of Melendez' employment by BBA and CI. *fn1" In consequence, BBA and CI are liable on the state law claims for Melendez' actions on the theory of respondeat superior.

 The liability of BBA and CI for punitive damages is another matter. It is well established in New York that an employer may be called upon to respond in punitive damages for the malicious acts of its employees "only where management has authorized, participated in, consented to or ratified the conduct giving rise to such damages, or deliberately retained the unfit servant..." Loughry v. Lincoln First Bank, N.A., 67 N.Y.2d 369, 378, 502 N.Y.S.2d 965, 969-70, 494 N.E.2d 70 (1986). While the jury was entitled to find that apprehending Smith was an assignment given by BBA and CI to Melendez, there was no evidence whatsoever that anyone in management authorized, participated in, consented to or ratified Melendez' conduct in continuing to hold Mason and turning her over to the Alabama bondsmen once he learned that Mason was not Audrey White Smith. The only conceivable theory for holding BBA and CI liable for punitive damages -- and the only theory submitted to the jury *fn2" -- was that Melendez was unfit and that BBA and/or CI was actually or constructively aware of that unfitness. (Tr. 763-64)

 There was very little evidence at trial concerning the unfitness theory on which the punitive damages claim against the Berretta entities went to the jury. Berretta acknowledged that he did not look into Melendez' background before entering into the arrangement with him (Tr. 186-87), and the jury therefore was entitled to charge his companies with knowledge of anything that such a check would have revealed. Plaintiff's difficulty, however, is that she failed to offer any evidence from which the jury reasonably could have found that Melendez was unfit when Berretta hired him or, for that matter, at any point before the fateful day on which he improperly retained custody of plaintiff after having learned that he had the wrong person. This conclusion, however, does not require that ...

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