57 A.D.2d 888 | N.Y. App. Div. | 1977
In an action to recover damages predicated, inter alia, upon assault and false arrest, defendants appeal from a judgment of the Supreme Court, Nassau County, entered February 3, 1976, which is in favor of plaintiffs Kenneth Laskowski, Ann Ryan and Ralph Crane, Jr., and against them, on a jury verdict. Judgment modified, on the law, by (1) deleting therefrom all provisions which are in favor of plaintiffs and against the individual defendants and substituting therefor a provision dismissing the complaint as against the said defendants and (2) deleting the first and second decretal paragraphs thereof and substituting therefor provisions severing the causes of action on behalf of plaintiffs Kenneth Laskowski and Ann Ryan and granting a new trial with respect thereto, limited to the issue of damages only, unless within 20 days after entry of the order to be made hereon, plaintiffs Kenneth Laskowski and Ann Ryan, or either of them, shall serve and file in the office of the clerk of the trial court a written stipulation consenting to reduce the verdicts in their favor to $20,745 (representing $15,000 for assault, $5,000 for false arrest, and $745 for property damage), and $2,000, respectively. In the event that each of the said plaintiffs so stipulates, then the judgment, as so reduced and amended, is affirmed. In the event only one of them so stipulates, then a severance and a new trial is directed as to the plaintiff who does not so stipulate and the judgment as to the other, as so reduced and amended, is affirmed. The judgment in favor of plaintiff Ralph Crane, Jr., insofar as it is against the County of Nassau, is affirmed. No costs or disbursements are awarded on this appeal. At the outset, we note that Trial Term erred in denying the defendants’ motion to dismiss the complaint as to the defendant police officers. Former subdivision 2 of section 52 of the County Law, which was in effect when the incidents involved herein occurred, provided that "No action shall be maintained against an officer * * * or employee of a county” unless such individual is "served personally or by registered mail”. There having been no such service in this case, the action may not properly be maintained against the individual defendants. It is clear that such service was a substantive requirement and not merely a procedural device which could be waived (Tucci v County of Nassau, 50 AD2d 945; Kritzer v County of Nassau, 47 AD2d 950). Under the circumstances, and given the minimal amount of injury sustained, the award of $2QjQ.QI). for the assault on plaintiff Kenneth Laskowski was excessive. Similarly, the award to him of $10,000