Citation Numbers： 46 A.D.2d 550, 363 N.Y.S.2d 669, 1975 N.Y. App. Div. LEXIS 8538
Judges： Greenblott, Kane
Filed Date： 2/6/1975
Status： Precedential
Modified Date： 11/1/2024
(dissenting in part). We agree with the majority that plaintiff’s testimony that she was told she could not leave the store until she signed .a statement, if believed by the jury, could constitute a basis for a finding that her detention was unreasonable, whereupon she would be entitled to recovery in her cause of action for false imprisonment. We also agree that there is insufficient evidence to support the plaintiff’s cause of action for malicious prosecution, and no malice having been shown, the determination setting aside the award of punitive damages is correct.
However, the award of compensatory damages in the amount of $5,000 was not allocated by the jury in any proportion as between the separate causes of action for false imprisonment and malicious prosecution, and it seems ito us impossible on the record before us to uphold that award without knowing how much, if any of it, was attributable to the action for false imprisonment. We are, therefore, of the opinion that the matter should be remitted to Trial Term of the Supreme Court for a new trial limited to the issue of compensatory damages to which plaintiff might be entitled on her action for false imprisonment.
Herlihy, P. J., and Reynolds, J., concur with Kane, J.; Greenblott and Main, JJ., dissent in part and vote to remit in an opinion by Greenblott, J.
Judgment modified, on the law and the facts, by dismissing the cause of action for malicious prosecution and setting aside the award of punitive damages, and, as so modified, affirmed, without costs.