Opinion
No. 228 SSM 48.
Decided October 26, 2010.
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered April 6, 2010. The Appellate Division (1) dismissed an appeal from an order of the Supreme Court, Kings County (James G. Starkey, J.; op 21 Misc 3d 1147[A], 2008 NY Slip Op 52527[U]), which had denied defendants' motion to set aside a jury verdict in favor of plaintiff and for judgment as a matter of law, or, alternatively, to set aside the verdict as against the weight of the evidence and for a new trial, and had granted their separate motion to set aside the verdict on the issue of damages only to the extent of ordering a new trial unless plaintiff stipulated to reduce the damage award for future pain and suffering, (2) reversed, on the law, a judgment of that court, entered upon the order and upon the plaintiffs stipulation, which was in favor of plaintiff awarding him the reduced damages, (3) granted that branch of defendants' motion to set aside the verdict and for judgment as a matter of law, and (4) denied, as academic, defendants' motion to set aside the verdict on the issue of damages.
The Appellate Division concluded that, viewing the facts in the light most favorable to plaintiff, there was no valid line of reasoning and permissible inferences which could possibly have led rational individuals to conclude, based upon the evidence presented, that the defendants were liable. The Appellate Division found plaintiffs version of the events was manifestly untrue, physically impossible, or contrary to common experience, and such testimony should be disregarded as being without evidentiary value. In addition, the Appellate Division noted that the record was replete with instances where the testimony and other evidence adduced by the plaintiff were manifestly untrue and tailored to avoid the consequences of previous statements made by him to disinterested nonparty witnesses.
Acosta v City of New York, 72 AD3d 624, reversed.
Alexander J. Wulwick, New York City, for appellant.
Michael A. Cardozo, Corporation Counsel, New York City ( Drake A Colley of counsel), for respondents.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, PIGOTT and JONES.
OPINION OF THE COURT
The order of the Appellate Division should be reversed, with costs, and the case remitted to that court for consideration of issues raised but not determined on the appeal to that court. A valid line of reasoning exists based on the record evidence to support the jury verdict finding defendants liable for battery and false arrest ( see generally Cohen v Hallmark Cards, 45 NY2d 493, 499). Thus, it was erroneous to set aside the verdict as a matter of law. On remittal, the Appellate Division must determine whether the jury's verdict is in accord with the weight of the evidence and, if so, whether the amount of damages awarded by the jury was excessive ( see id. at 500 and n 4).
In memorandum; Judge SMITH dissents and votes to affirm for the reasons stated in the memorandum at the Appellate Division ( 72 AD3d 624).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order reversed, etc.