Feinberg v. Saks & Co.

83 A.D.2d 952, 443 N.Y.S.2d 26, 1981 N.Y. App. Div. LEXIS 15408

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 28, 1981
• Status: Published

Opinions

In an action to recover damages for, inter alia, false arrest and imprisonment and malicious prosecution, defendants Saks & Company and Norma Sanderson separately appeal from so much of a judgment of the Supreme Court, Westchester County (Burchell, J.), entered July 15, 1980, as is in favor of plaintiff Doris Feinberg upon her cause of action for malicious prosecution, in the principal amount of $105,000, upon a jury verdict. The appeal brings up for review an order of the same court, dated June 27,1980, which denied the motion of said defendants to set aside the verdict on the ground that it was inconsistent with the jury’s verdict in favor of then! on plaintiff Doris Feinberg’s cause of action for “false detention”. Judgment reversed insofar as appealed from and order reversed, on the law, with one bill of costs payable jointly to appellants, motion to set aside the verdict in favor of plaintiff Doris Feinberg is granted, and the cause of action for malicious prosecution is dismissed. The case arises out of an incident which occurred on June 17, 1976 at the store of defendant Saks & Company. At that time, defendants Sanderson and Proft (not a party to this appeal) followed Doris Feinberg (hereafter plaintiff) from the store into the parking lot where they took her into custody. It was their contention that they observed plaintiff steal two shirts by tearing the price tags from them and asporting them from the store in a shopping bag. On Sanderson’s complaint, plaintiff was charged with petit larceny. At a subsequent criminal trial, plaintiff was acquitted of that charge. Subsequently, this action was commenced. General verdicts were returned in favor of appellants on the cause of action for “false detention” and in favor of plaintiff on her cause of action for malicious prosecution. On their motion to set aside the jury’s verdict against them and on this appeal, appellants claim that under the facts and circumstances of this case such verdicts are inconsistent. We agree, and accordingly reverse. At the outset, we note the general rule that a defendant who has “probable cause” to subject a plaintiff to a “reasonable detention” has a complete defense to a cause of action for false arrest or imprisonment and that the existence of such “probable cause” will serve to bar an action for malicious prosecution as well (see Mullen v Sibley, Lindsay & Curr Co., 71 AD2d 21, revd on other grounds 51 NY2d 924). Of course, should some intervening fact become known to defendant between the time of detention and the time of prosecution which would serve to exonerate the plaintiff, any further prosecution at that point would be wanting of probable cause. Under such circumstances, an action for malicious prosecution would lie even though the plaintiff was not falsely imprisoned or detained (see Oakley v City of Rochester, 71 AD2d 15, affd 51 NY2d 908). In reviewing the facts presented at the trial, this court finds, as a matter of law and without resorting to mere speculation, that no such intervening circumstance occurred which would vitiate appellants’ probable cause to detain and subsequently prosecute the plaintiff. Thus, the general rule as espoused in Mullen (supra) must apply and the verdicts for plaintiff on her cause of action for malicious prosecution and against her on her cause of action for “false detention” cannot be reconciled. Having found probable cause to detain plaintiff the jury was obliged to find (under the instant facts) that appellants also had probable cause to prosecute. Hence, we reverse and dismiss the cause of action for malicious prosecution. Lazer, J.P., O’Connor and Thompson, JJ., concur.