Brizer v. City of New York

51 A.D.2d 791, 380 N.Y.S.2d 60, 1976 N.Y. App. Div. LEXIS 11364

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 23, 1976
• Status: Published

Opinion

an action inter alia to recover damages for false arrest and malicious prosecution, (1) defendants appeal, as limited by their notices of appeal and briefs, from so much of an amended judgment of the Supreme Court, Kings County, entered May 27, 1975, as is in favor of plaintiff in the principal amount of $15,000, upon a jury verdict, and (2) plaintiff cross-appeals from so much of the amended judgment as calculates interest upon the amount of the verdict from January 13, 1975, the date of the verdict. Judgment affirmed, without costs or disbursements. We find the verdict to be supported by the credible evidence and not to be excessive. The defendant city,- having failed to object to that portion of the court’s charge which directed the jury that it must find the city liable on the false arrest and malicious prosecution causes of action if it found defendant McNicholas liable thereon, has waived the question, on appeal, of whether it can be held derivatively liable for McNicholas’s acts (see CPLR 4017). Since defendants did not delay in prosecuting their appeal from the judgment entered on April 29, 1971, after the first trial of this action (the verdict on that trial having been found by this court to have been excessive [see Gilbert v City of New York, 40 AD2d 516]), plaintiff is entitled to interest only from the date of the present verdict (see Beyer v Murray, 33 AD2d 246; Lindwall v Talent Cab Corp., 51 Misc 2d 381, affd 27 AD2d 647). Cohalan, Acting P. J., Margett, Damiani, Rabin and Hawkins, JJ., concur.