Upon reading and filing the post-trial motion (1) and supplemental affirmation in support of post-trial motion (2) by plaintiff, the post-trial cross-motion of defendant (3) and the reply affirmation (4) and affirmation in opposition to defendant’s cross-motion by plaintiff (5), and after due deliberation, it is hereby ORDERED, that plaintiff’s post-trial motion is granted in part and denied in part as set forth herein and defendant’s post-trial cross-motion is denied. This is an action in which plaintiff sought money damages on multiple bases all related to her use and occupancy of an apartment in the home of defendants. This matter was tried before a jury on February 14 and February 18, 2020. The jury returned a verdict partially in plaintiff’s favor and partially in defendant’s favor on February 18, 2020. Plaintiff now moves for an additur to the damages awarded by the jury on the wrongful eviction/abuse of process cause of action and the three malicious prosecution causes of action and for a judgment notwithstanding the verdict and an award of damages in favor of plaintiff on the defamation cause of action. Defendant cross-moves for a new trial on the grounds that the court improperly refused to admit evidence bearing on the credibility of plaintiff and for improperly allowing plaintiff to alter the theory of the case during the trial. Plaintiff alleged that defendants committed the tort of malicious prosecution by causing plaintiff to be charged with harassment (on two occasions by defendant Sally Hawkins and on one occasion by defendant Robert Hawkins) which resulted in a prosecution of these charges, all of which were ultimately dismissed. The jury found in favor of plaintiff on all three charges and awarded both compensatory and punitive damages. For various reasons, plaintiff asks the court to exercise its discretion to set aside the amount of these verdicts as inadequate. With respect to the defamation cause of action regarding which the jury found in favor of defendant, the plaintiff asks for a judgment notwithstanding the verdict together with an award of damages. Finally, with respect to the cause of action for abuse of process based upon wrongful eviction, plaintiff asks the court to set aside the damage portion of the verdict as inadequate and/or to award treble damages as authorized by Real Property Actions and Proceedings Law (“RPAPL”) section 853. Plaintiff also requests pre-verdict interest on this cause of action pursuant to CPLR 5001(a). The court denies defendants’ cross-motion pursuant to CPLR 4404(a) as untimely. This motion was required to be made within fifteen (15) days of the verdict which came in on February 18, 2020. Thus, the motion was required to be made on or before March 4, 2020. Defendant’s motion, made in the form of a “cross-motion” was made no earlier than July 15, 2020. Due to the pandemic, the courts closed operations on March 16, 2020. This motion was required to be made twelve days prior to this date and therefore the delay is not excusable due to the pandemic. Moreover, defendant made no attempt to contact the court by telephone call, letter, fax or email to request additional time to file the motion. In any event, the court finds no merit to defendant’s arguments. Defendants allege that the court should have permitted cross-examination of plaintiff regarding issues relating to her employment in 2016 and based upon mere allegations in that lawsuit, claimed that defendants could delve into the facts and circumstances in an effort to impugn plaintiff’s credibility. The court denied the request, finding that an attempt to prove these allegations by extrinsic evidence or to permit cross-examination into the underlying facts of an employment relationship to be both far-fetched and not bearing on plaintiff’s credibility. Defendants also alleged that the court had erred by allowing plaintiff to change the theory of the case. This is simply not the case. The court found that the complaint had sufficiently plead the causes of action that were tried before the jury. Turning to plaintiff’s motion, the court is guided by CPLR §5501[c] which allows the court to order a new trial on damages unless a stipulation is entered into by the parties regarding an award that the court determines to be inadequate or excessive “if it deviates from what would be reasonable compensation.” In making this determination, the court is guided by the trial testimony and exhibits and the jury verdict. The court also is guided by comparable verdicts. See, e.g., Lynch v. County of Nassau, 278 A.D.2d 205 (2nd Dep’t 2000)(plaintiff suffered humiliation and deprivation of liberty as a result of being arrested, handcuffed, booked and fingerprinted, and by the subsequent criminal proceedings but there was little objective evidence that she suffered significant damage to her reputation as a result of the defendants’ actions; accordingly, the damage award was reduced from $25,000 to $10,000); Landow v. Town of Amherst, 49 A.D.3d 1236, 1237 (4th Dep’t 2008)(an award of $10,000 did not materially deviate from what was reasonable compensation for the humiliation and embarrassment suffered by plaintiff as a result of his four-hour pre-arraignment incarceration); Parkin v. Cornell University, Inc., 182 A.D.2d 850, 852 (3rd Dep’t 1992)(awards of $100,000 reduced to $10,000 for each plaintiff; plaintiff’s had minimal financial losses; plaintiff’s contacts with the criminal justice system was brief, there was some evidence that plaintiffs’ suffered teasing and embarrassment). These cases were cited in Wamhach v. Berrios, 20!8 WL 1811660 (Trial Order)(N.Y. Sup. Ct. Kings Co. 2018)($25,000 awarded for malicious prosecution claim with testimony of embarrassment and humiliation). The jury awarded $1500 in compensatory damages and $2,850 in punitive damages for each of three malicious prosecution claims. The unchallenged testimony of plaintiff was that she paid $13,000 for legal fees for her defense of these prosecutions, which all resulted in dismissals and that she was required to appear in court 19 times. The court finds these compensatory damage awards to be inadequate and hereby awards $5,000 per each claim for a total of $15,000. With respect to the punitive damages claims, the testimony and evidence established that plaintiff was taken into custody in handcuffs after being arrested on December 8, 2011. She was taken to the station house where she was handcuffed to a desk in full view for almost two hours. The police officers noted that plaintiff was visibly upset in the records relating to this detention. The court finds that the punitive damage award for this charge to be inadequate and hereby awards $10,000. The court does not disturb the punitive damage award with respect to the other two malicious prosecution claims. Plaintiff’s defamation cause of action was based on the allegation that defendant Sally Hawkins called plaintiff an “arsonist” while speaking to a police officer in the presence of plaintiff. The jury declined to find for plaintiff on this cause of action. The court will not disturb this finding as it was in the province of the jury to decide whether they believed that defendant uttered this statement as alleged by plaintiff. While the court charged the jury that if they found that defendant had called plaintiff an “arsonist” to a police officer, that the jury must award plaintiff damages, the jury could have determined that they did not believe that the plaintiff heard this testimony correctly or was not being truthful. The police officer was not produced as a witness. The only evidence was the testimony of plaintiff. With respect to the abuse of process claim based upon the unlawful eviction of plaintiff, the jury found in favor of plaintiff but awarded $2,000 compensatory damages which corresponds to funds defendants caused to be seized from plaintiff’s bank account. Plaintiff also claim loss of her personal property that was put on the street by defendants and which she valued at $10,000. That testimony, however, was not supported by any proof. It was merely an estimate by plaintiff. No evidence of any kind was offered to establish the value of the personal property. Accordingly, the court will not disturb the award for the amount of compensatory damages on this cause of action based upon the evidence in the record as the jury could rationally conclude that plaintiff had not proved entitlement to any other amounts. Plaintiff asks that the court award treble damages for the abuse of process claim as authorized by RPAPL §853, which provides, in essence, that a plaintiff-tenant is “entitled to recover treble damages” where the tenant is, inter alia, unlawfully dispossessed of real property. The jury found that plaintiff was unlawfully dispossessed by defendants. The parties had entered a stipulation of settlement in a landlord tenant action that allowed plaintiff to remain in possession until February 29, 2012. However, the jury found that defendants had obtained a stay away order of protection on February 17, 2012 that had the effect of evicting her from the apartment as of that date and that defendants had done so in violation of plaintiff’s rights and was therefore unlawful. The jury found that defendants had without lawful basis obtained the stay away order of protection on February 17, 2012 solely for the purpose of evicting plaintiff from the apartment twelve (12) days earlier than she was required pursuant to the stipulation all parties had agreed to in court. Under these factual circumstances, the court finds that plaintiff is entitled to treble damages. See Moran v. Orth, 36 A.D.3d 771 (2nd Dep’t 2007). This finding is supported by the jury’s finding that plaintiff was entitled to punitive damages due to the malicious and wrongful nature of their actions. The court therefore trebles the damages award of $2,000 to $6,000. Finally, plaintiff requests pre-judgment interest on the award for the abuse of process claim based upon the wrongful eviction pursuant to CPLR 5001(a). Interest “shall” be awarded where a party has been deprived of possession or enjoyment of property due to the act or omission of another. This is clearly the case here. Accordingly, the court awards plaintiff pre-verdict interest on $11,760 (consisting of treble damage award of $6,000 plus the punitive damage award of $5,760) at the statutory rate from March 1, 2012. Unless defendants stipulate to the sums herein as adjusted by the court with respect to the three malicious prosecution claims, this matter will be set down for a jury trial on the amount of compensatory damages for those three claims and for the punitive damage award for the one claim as noted. The determination of the trebling of the damage award and the allowance of interest on the abuse of process claim is within the province of the court to determine. Plaintiff is entitled to submit a proposed judgment on ten (10) days’ notice consistent with the court’s determination herein, excluding only the awards adjusted by the court if not stipulated to by the defendants. Of course, the parties are free to reach their own agreement as to the amount of damages. X FINAL DISPOSITION _ NONFINAL DISPOSITION Dated: November 19, 2020
