75 A.D.2d 921 | N.Y. App. Div. | 1980
Lead Opinion
Appeal from a judgment of the Supreme Court, entered February 27, 1978 in Montgomery County, upon a verdict rendered at a Trial Term, in favor of plaintiff. Plaintiff is employed as a construction inspector by the New York State Department of Transportation. He is also a licensed owner, trainer and driver of trotting and pacing horses. As a result of an incident at defendant’s facility on April 7, 1971, plaintiff, in an action for false arrest, has obtained a verdict against defendant for $750 in compensatory damages and $5,000 in punitive damages. The relevant and, for the most part, uncontradicted facts are amply set forth in the decision of this court when the matter was before us on an earlier appeal (50 AD2d 950). On that occasion, we upheld the judgment appealed from insofar as it dismissed the cause of action for malicious prosecution on the ground there was no evidence which would allow a jury to find that defendant was guilty of malice in instigating the criminal action against plaintiff. However, we directed a new trial on the cause of action for false arrest because the trial court had erroneously placed the burden of establishing the unlawfulness of a warrantless arrest on plaintiff (cf. Broughton v State of New York, 37 NY2d 451). After the retrial, some six years after the event, the record now contains two uncorroborated epithets attributed to defendants’ agents upon which the trial court relied, in large part, to sustain the jury’s award of punitive damages. With the exception of these two statements substantially the same evidence was advanced during the prior trial in which this court found no malice—albeit on a different cause of action—and the fact that these slurs were somehow belatedly recalled at the time of the new trial seriously diminishes the effect of such testimony. It simply does not possess sufficient probative quality to justify a punitive award (cf. Guión v Associated Dry Goods Corp. [Lord & Taylor Div.], 43 NY2d 876; Walker v Sheldon, 10 NY2d 401). Apart from this deficiency involving an element of damages, there is a more basic flaw in plaintiff’s case which, in our opinion, precludes any recovery. The presumptive unlawfulness of a warrantless arrest by a private citizen is overcome if it is shown that the plaintiff had, in fact, committed an offense in defendant’s presence (CPL 140.30; cf. Smith v County of Nassau, 34 NY2d 18, 23; McLoughlin v New York Edison Co., 252 NY 202). While justification is ordinarily a matter of affirmative defense, here the examination of plaintiff’s witnesses demonstrates that he was committing the crime of criminal trespass at the time of his arrest. Accordingly, there was no rational view of the evidence that would permit the jury to find in his favor and defendant’s motion to dismiss the complaint at the close of plaintiff’s evidence should have been granted. Whether plaintiff’s arrangement with defendant was some form of tenancy, a license or a privilege is uncertain, but it is plain that the relationship was at defendant’s will and sufferance. It is equally plain that sometime before March 29, 1971, he was requested to remove himself and his horses from the raceway. He failed to comply and on that date the request was repeated in written form, politely advising him that his horses were not being assigned stalls for the approaching season. Again he failed to comply, and on April 7, 1971, he was personally served with another written notice barring him from defendant’s premises and advising him that a violation of the directive
Dissenting Opinion
Plaintiff, a licensed owner, trainer and driver of trotting and pacing horses, had two horses in stalls at defendant’s racetrack for which he paid a daily rental. On March 31, 1971 plaintiff received a letter from defendant requesting that he remove his horses by April 4, 1971. Plaintiff testified that he then had a conversation with defendant’s racing secretary, Harold Haswell. Haswell refused to tell him why he was not given stall space and when plaintiff persisted, Haswell said, "Out, out Guinea. Out of my office.” Plaintiff continued to tend his horses. As he was entering the stable gate on April 7, 1971, he was stopped by one of defendant’s guards who gave him a letter which stated that plaintiff was barred from defendant’s property because his presence "[was] not desired.” Plaintiff then left the track and contacted his attorney. Haswell informed the attorney that he made the rules for the track and that if plaintiff "steps one foot in this track, I’ll have the son-of-a-