$500K Damages for False Report of Assault to Police

From Bisogno v. Libertella, decided two months ago by the New York Appellate Division, Justices Francesca E. Connolly, Paul Wooten, Helen Voutsinas, and James P. McCormack:

On May 9, 2013, the plaintiff and the defendants appeared for a hearing in the Family Court, Richmond County, relating to a child support proceeding between the defendant John Libertella (hereinafter John) and his former wife. The plaintiff, a lawyer, appeared on behalf of his sister-in-law, John’s former wife. John was accompanied by his father, the defendant Giovanni Libertella. As the parties left the hearing, they were involved in a verbal altercation, which John video-recorded on his phone. The defendants told a court officer that the plaintiff punched John in the face and that John wanted the police called. The police were called, and the plaintiff was arrested.

In November 2013, the District Attorney’s office dismissed the charges against the plaintiff. Multiple news outlets reported on the altercation and the plaintiff’s subsequent arrest.

The plaintiff commenced this action against the defendants asserting, inter alia, causes of action sounding in defamation per se, false arrest, and malicious prosecution. After a trial, the jury returned a verdict in favor of the plaintiff and against both defendants on the cause of action alleging defamation per se and against John on the causes of action alleging false arrest and malicious prosecution….

The court upheld the finding of liability:

[B]ased on the evidence adduced by the plaintiff at trial, there was a valid line of reasoning and permissible inferences from which the jury could have concluded that the statements made by the defendants were defamatory per se, because they falsely accused the plaintiff of a serious crime, attempted assault….

“To be held liable for false arrest, a [civilian] defendant must have affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his or her own volition.” “[O]ne who wrongfully accuses another of criminal conduct and induces or procures that person’s arrest may be liable for false arrest.”

In order to recover damages for malicious prosecution, a plaintiff must establish “that a criminal proceeding was commenced; that it was terminated in favor of the accused; that it lacked probable cause; and that the proceeding was brought out of actual malice.” “A civilian defendant who merely provides information to law enforcement authorities, who are free to exercise their own independent judgment as to whether to make an arrest and file criminal charges, will not be held liable for false arrest or malicious prosecution.” “[T]o be held liable for malicious prosecution, it must be shown that the defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act.” “Merely giving false information to the authorities does not constitute initiation of the proceeding without an additional allegation or showing that, at the time the information was provided, the defendant knew it to be false, yet still gave it to the police or the District Attorney.”

Here, the record demonstrated that the plaintiff would not have been arrested but for the defendants’ false statements that the plaintiff had punched John, as well as John’s statements importuning the police to arrest the plaintiff. John instigated the arrest, making the police his agents in confining the plaintiff, based upon false information that the plaintiff had assaulted him. Furthermore, the criminal proceeding was instituted by the District Attorney based upon, among other things, false information given by John.

But the court concluded that the jury’s damages awards ($10M in compensatory damages and $250K in punitives) were excessive, and ordered a new trial unless the plaintiff agreed to reducing the damages to $400K in compensatory damages and $100K in punitives.

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