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Fulton v. New York City Police Dep't

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 23, 2009

ELVETTA FULTON, PLAINTIFF-RESPONDENT,
v.
THE NEW YORK CITY POLICE DEPARTMENT AND THE CITY OF NEW YORK, DEFENDANTS-APPELLANTS.

Defendants, as limited by their briefs, appeal from that portion of an amended judgment of the Civil Court of the City of New York, Bronx County (Julia I. Rodriguez, J.), entered February 7, 2006, upon a jury verdict, which awarded plaintiff damages for false arrest in the aggregate amount of $850,000, and bringing up for review a post-trial order (same court and Judge), entered February 14, 2005, which denied defendants' motion for judgment notwithstanding the verdict on the false arrest claim.

Per curiam.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

PRESENT: McKeon, P.J., Schoenfeld, JJ

Amended judgment (Julia I. Rodriguez, J.), entered February 7, 2005, to the extent appealed from, reversed, without costs, defendants' motion to set aside the jury verdict on the false arrest claim granted and plaintiff's false arrest cause of action dismissed. The Clerk is directed to enter a further amended judgment accordingly. Defendants' motion for judgment notwithstanding the verdict on plaintiff's false arrest claim should have been granted. The existence of probable cause serves as a legal justification for an arrest and an affirmative defense to a false arrest claim (see Martinez v City of Schenectady, 97 NY2d 78 [2001]). The trial evidence, including plaintiff's own testimony, showed that plaintiff, following her arrest, was issued a summons for the offense of excessive horn honking (see Administrative Code of City NY former § 24- 221[a]; CPL 140.10[1][a]). At a subsequent hearing before an administrative judge of the Environmental Control Board, plaintiff was found to have violated the Code and assessed a civil penalty. On this record, and in the absence of any evidence that the administrative ruling was overruled on appeal, dismissal of the false arrest claim is required as a matter of law since probable cause for plaintiff's arrest was established (see Broughton v State of New York, 37 NY2d 451 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). Lack of probable cause to arrest or prosecute is an essential element of false arrest (see Rodriguez v City of New York, 40 AD3d 334 [2007]).

Even assuming that defendants did not have probable cause to arrest, the jury's award of $850,000 on the false arrest claim for three hours of detainment was clearly excessive and beyond any rational limit (see Sital v City of New York, AD3d , 2009 NY Slip Op 1716 [2009] [$500,000 award for 20 hours in custody reduced to $150,000]; Landow v Town of Amherst, 49 AD3d 1236 [2008] [$10,000 reasonable for the humiliation and embarrassment suffered during four hours in custody]; Gutierrez v City of New York, 288 AD2d 86 [2001][$500 for "one day period" absent any evidence of physical or other injuries]). To the extent plaintiff established that she sustained physical injuries, the jury awarded her $100,000 for those injuries on her assault claim, a verdict which defendants do not challenge on appeal.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

20090423

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