47 A.D.2d 520 | N.Y. App. Div. | 1975
In an action to recover damages for false arrest and malicious prosecution, plaintiff appeals from a judgment of the Supreme Court, Queens County, entered February 26,1974, in favor of defendant, in part upon the trial court’s direction of a verdict and in part upon a jury verdict. Judgment reversed, on the law and in the interests of justice, and new trial granted, with costs to abide the event. Appellant raised no issues as to the facts and none were considered on this appeal. Plaintiff, an uncontrolled diabetic for more than 30 years, requires insulin injections each morning. In spite of the medication, he has often gone into insulin shock. When this occurs, his wife seeks the aid of the police emergency squad, which often has taken him to a nearby hospital. On the evening of May 17, 1971, plaintiff’s wife observed him going into shock and immediately called the “911” police emergency number. Shortly thereafter, two police officers arrived at plaintiff’s apartment with an ambulance. It is uneontroverted that plaintiff’s wife informed the policemen that he was unconscious because he was a diabetic and had gone into insulin shock. According to the police officers, plaintiff began to recover from his unconscious state following a dosage of smelling salts administered by the ambulance attendant. The officers testified that as plaintiff awakened he became violent, started swinging wildly and had to be subdued. Controverting that version of the facts, plaintiff’s wife testified that the police officers accused plaintiff of being drunk. She added that the officers) rather than offer assistance, tied her husband’s feet with a belt and handcuffed his hands behind his back. Plaintiff was then arrested for assault and taken to the local precinct, where he ultimately was charged with harassment. Plaintiff appeared in court several times and the case was finally dismissed following a trial. As a result of the foregoing incident, plaintiff brought this action seeking compensatory and punitive damages for bodily harm, humiliation, embarrassment and scorn. At the end of the trial the court directed a verdict for defendant on the cause of action for malicious