LYNSKEY v. BAILEY (2005)

Appeal by defendant from a judgment of the Civil Court, Kings County (L. Baily-Schiffman, J.), entered August 26, 2003, after a directed verdict against her, in the sum of $420,065.

Judgment reversed without costs and matter remanded to the court below for a new trial limited to the issue of damages in accordance with the decision herein.

 To establish a cause of action for false imprisonment, “the plaintiff must show that (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged ․” (Broughton v. State of New York, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335 N.E.2d 310 [1975] ).  “[T]he burden of proving privilege is upon the person or entity charged with the commission of the tort” (Gonzalez v. State of New York, 110 A.D.2d 810, 812, 488 N.Y.S.2d 231 [1985];  see also Broughton, 37 N.Y.2d at 458, 373 N.Y.S.2d 87, 335 N.E.2d 310).   Inasmuch as the record did not establish that plaintiff consented to his confinement, defendant was not entitled to a directed verdict (see Hernandez v. Two E. End Ave. Apt. Corp., 303 A.D.2d 556, 557, 757 N.Y.S.2d 65 [2003] ). “As a matter of pleading[,] the defendant has the burden of proving legal justification as an affirmative defense and the defendant will be precluded from introducing such evidence upon a general denial” (Broughton, 37 N.Y.2d at 458, 373 N.Y.S.2d 87, 335 N.E.2d 310;  see also Parvi v. City of Kingston, 41 N.Y.2d 553, 557, 394 N.Y.S.2d 161, 362 N.E.2d 960 [1977] ).   Thus, because defendant's answer did not interpose justification as an affirmative defense and defendant did not seek leave to amend her answer to interpose such an affirmative defense, the court properly awarded plaintiff a directed verdict as to liability (see Parvi, 41 N.Y.2d at 557, 394 N.Y.S.2d 161, 362 N.E.2d 960;  Broughton, 37 N.Y.2d at 458, 373 N.Y.S.2d 87, 335 N.E.2d 310;  Hernandez, 303 A.D.2d at 557, 757 N.Y.S.2d 65).   In any event, because defendant failed to establish that she acted in accordance with the Mental Hygiene Law, she did not sustain her burden of proving that her conduct was privileged (see Broughton, 37 N.Y.2d at 458, 373 N.Y.S.2d 87, 335 N.E.2d 310;  Gonzalez, 110 A.D.2d at 812, 488 N.Y.S.2d 231).

 However, plaintiff is not entitled to recover damages for the period of his confinement after he was examined by a psychiatrist who then directed that plaintiff be involuntarily committed (see Warner v. State of New York, 297 N.Y. 395, 404, 79 N.E.2d 459 [1948];  Lynch v. St. Lawrence Nat. Bank, 62 A.D.2d 1140, 404 N.Y.S.2d 484 [1978] ).   Such intervening act by the psychiatrist terminated defendant's liability for damages arising from plaintiff's confinement.   As a result, the matter must be remanded for a new trial to determine the amount of damages, including punitive damages, to which plaintiff is entitled for the period of time commencing with his confinement at defendant's direction and concluding with the determination by the psychiatrist that plaintiff should be involuntarily committed.

 Inasmuch as the time of plaintiff's involuntary commitment is relevant to the amount of damages to which plaintiff may be entitled (see Warner, 297 N.Y. at 404, 79 N.E.2d 459;  Lynch, 62 A.D.2d at 1141, 404 N.Y.S.2d 484), the medical records concerning plaintiff's involuntary commitment may establish that fact.   We note that while said records were not admissible pursuant to CPLR 4518(c), it was error to deny defendant an opportunity to authenticate them pursuant to CPLR 4518(a) (see e.g. People v. Benedetto, 294 A.D.2d 958, 744 N.Y.S.2d 92 [2002];  Maxcy v. County of Putnam, 178 A.D.2d 729, 730, 576 N.Y.S.2d 959 [1991] ).   To the extent that said records may contain hearsay, such fact impacts upon their weight and not upon their admissibility (see CPLR 4518[a];  Niles v. Patel, 235 A.D.2d 275, 652 N.Y.S.2d 41 [1997] ).

 We note that inasmuch as plaintiff's damages claim requires various assumptions regarding salary increases, merit awards and team bonuses which were not received by plaintiff, as well as cost of living adjustments and their past and future impact upon plaintiff's pension, such testimony may not be introduced via a lay witness who fails to establish with reasonable certainty the amount of such damages (see De Long v. County of Erie, 60 N.Y.2d 296, 469 N.Y.S.2d 611, 457 N.E.2d 717 [1983];  Ordway v. Columbia County Agricultural Socy., 273 A.D.2d 635, 709 N.Y.S.2d 691 [2000];  Testa v. Seidler, 81 A.D.2d 715, 439 N.Y.S.2d 469 [1981] ).   It should be further noted that pre-judgment interest may not be recovered upon an award of damages for false imprisonment (see General Construction Law § 37-a;  CPLR 5001 [a];  Love v. State of New York, 78 N.Y.2d 540, 577 N.Y.S.2d 359, 583 N.E.2d 1296 [1991] ).

I agree with my colleagues' determination that the trial court properly directed a verdict as to liability against defendant and that plaintiff is only entitled to damages which flow from the false imprisonment of plaintiff at defendant's direction through the determination by a psychiatrist that plaintiff should be involuntarily committed (see Warner v. State of New York, 297 N.Y. 395, 404, 79 N.E.2d 459 [1948];  Lynch v. St. Lawrence Nat. Bank, 62 A.D.2d 1140, 404 N.Y.S.2d 484 [1978];  see generally Williams v. Moore, 197 A.D.2d 511, 602 N.Y.S.2d 199 [1993] [damages for false arrest not recoverable for period of time after plaintiff was arraigned] ).   However, I disagree with their conclusion that the matter be remanded for a new trial as to damages.

In the instant case, plaintiff was wrongfully detained for several hours.   To the extent the jury awarded plaintiff the sum of $10,000 for pain and suffering, said sum was not excessive (see e.g. Stile v. City of New York, 172 A.D.2d 743, 569 N.Y.S.2d 129 [1991];  Galper v. Port Auth. of N.Y. & N.J., 134 A.D.2d 324, 520 N.Y.S.2d 723 [1987] ).   Although the majority and I agree that the evidence adduced at trial was insufficient to support the jury's awards for past lost earnings and future lost earnings, I would not remand the matter for a new trial as to damages.   Rather, I would simply uphold the jury's award with respect to pain and suffering and punitive damages.

“Punitive damages generally are reserved for rare cases exhibiting malice, fraud, oppression, insult, wantonness, or other aggravating circumstances which effect a public interest” (Laurie Marie M. v. Jeffrey T.M., 159 A.D.2d 52, 58, 559 N.Y.S.2d 336 [1990], affd. 77 N.Y.2d 981, 571 N.Y.S.2d 907, 575 N.E.2d 393 [1991];  see also Walker v. Sheldon, 10 N.Y.2d 401, 223 N.Y.S.2d 488, 179 N.E.2d 497 [1961] ). “Where persons in positions of power or authority wantonly misuse their authority or maliciously abuse the courts or the media, awards of punitive damages have been upheld” (Laurie Marie M., 159 A.D.2d at 59, 559 N.Y.S.2d 336).  “Whether to award punitive damages in a particular case, as well as the amount of such damages, if any, are primarily questions which reside in the sound discretion of the original trier of the facts ․, in this case the jury, and such award is not lightly to be disturbed” (Nardelli v. Stamberg, 44 N.Y.2d 500, 503, 406 N.Y.S.2d 443, 377 N.E.2d 975 [1978] [citations omitted] ).

To recover punitive damages as a result of his false imprisonment, plaintiff was obligated to demonstrate that defendant acted with malice to cause his detention (see Guion v. Associated Dry Goods Corp. (Lord & Taylor Div.), 43 N.Y.2d 876, 403 N.Y.S.2d 465, 374 N.E.2d 364 [1978];  Grinnell v. Weston, 95 App.Div. 454, 464-465, 88 N.Y.S. 781 [1904];  59 N.Y. Jur.2d, False Imprisonment § 152).   In the case at bar, the evidence supports a finding that defendant ensured plaintiff's involuntary detention by falsely informing police officers who responded to the scene at her behest that defendant was being disruptive and that he had a history of violence.   Accordingly, the jury's award of punitive damages is supported by the evidence (see Mesiti v. Wegman, 307 A.D.2d 339, 763 N.Y.S.2d 67 [2003];  Grinnell v. Weston, 95 App.Div. at 464-465, 88 N.Y.S. 781;  see generally Wolosin v. Campo, 256 A.D.2d 332, 681 N.Y.S.2d 358 [1998] ).   Since such award “is not lightly to be disturbed” (Nardelli, 44 N.Y.2d at 503, 406 N.Y.S.2d 443, 377 N.E.2d 975) and the record does not demonstrate that it is “so grossly excessive as to show by its very exorbitancy that it was actuated by passion” (id. at 504, 406 N.Y.S.2d 443, 377 N.E.2d 975 [internal quotation marks omitted] ), I would modify the judgment by striking the award for past and future lost earnings, but otherwise affirm the jury's award with respect to both pain and suffering and punitive damages.

PESCE, P.J. and RIOS, J., concur. BELEN, J., concurs in a separate memorandum.