Opinion
October 30, 1997
Appeal from Supreme Court, New York County (Robert Lippmann, J.).
This action for, inter alia, assault and false arrest against the Port Authority and several of its police officers was brought by a former employee of a Port Authority subcontractor who was arrested for trespass in a restricted area of the Port Authority bus terminal.
We find that dismissal of the cause of action for false arrest and malicious prosecution was properly based on undisputed evidence that the officers who arrested plaintiff were unaware that he was employed at the premises and had an objectively valid basis for believing plaintiff to be a trespasser, thereby providing them with the requisite probable cause to arrest when he entered the restricted area without exhibiting his identification and did not immediately respond to the officers' command to stop.
However, we find the award on the assault cause of action to be inadequate to the extent indicated. We also find that the court was not warranted in dismissing the demand for punitive damages before submission to the jury since, accepting the plaintiff's version of the events as true ( Thornhill v. Toys "R" Us NYTEX, 183 A.D.2d 1071), there was sufficient evidence from which the jury could find that the wrongdoing of Officers Baden and DeMartino was "`"intentional and deliberate, and has the character of outrage frequently associated with crime"'" ( Liberman v. Riverside Mem. Chapel, 225 A.D.2d 283, 291, quoting Prozeralik v. Capitol Cities Communications, 82 N.Y.2d 466, 479, quoting Prosser and Keeton, Torts § 2, at 9 [5th ed 1984]).
The testimony of the 60-year-old plaintiff alleged that he was thrown to the ground by Officer Baden and a number of other officers, that he was held down by Officer Baden with a foot to his throat, that he was kicked while being held down on the ground, that his shirt was torn off and that he was pulled to his feet in a violent manner causing "excruciating" pain in his arm. He was then shackled to a wall by Officers Baden and DeMartino, where he remained, naked from the waist up, for 40 minutes. During that period, Officer DeMartino found an Alabama license in plaintiff's wallet and proceeded to taunt plaintiff with a rendition of "Oh Susanna" ("Oh, I come from Alabama with a banjo on my knee"), drawing laughs from other officers. Moreover, plaintiff also testified that when the officer found plaintiff's work identification, the officer tried to mollify him, but when that approach was unsuccessful plaintiff was, instead, fingerprinted and the paperwork was completed on his arrest. Ultimately, plaintiff had to appear twice in Criminal Court before the charges against him were dropped on the motion of the District Attorney's office.
We find that these allegations warrant submission of the demand for punitive damages to a jury and therefore modify the judgment to remand for a new trial on that claim. We also find the award on the assault cause of action to be inadequate to the extent indicated. We have considered plaintiffs' arguments that they were deprived of a fair trial by various of the court's evidentiary rulings and bias, and find them to be without merit. We also modify the judgment to reflect the plaintiffs' agreement to discontinue the action as against defendant Doubrowski and to discontinue the cause of action for punitive damages against defendant Werfelman.
Motion denied insofar as it seeks renewal or leave to appeal to the Court of Appeals; insofar as reargument is sought, the motion is granted and upon reargument the unpublished decision and order of this Court entered on June 17, 1997 (Appeal No. 61111) is recalled and vacated and a new decision and order decided simultaneously herewith, substituted therefor.
Concur — Milonas, J.P., Ellerin, Nardelli, Williams and Mazzarelli, JJ.