`
`=..._..
`
`
`INDEX NO. 153314/2012
`FILED: NEW YORK COUNTY CLERK 07/17/2018 10:55 AM
`FILED: NEW YORK COUNTY CLERK 07M‘2‘
`
`NYSCEF DOC. NO. 278
`RECEIVED NYSCEF: 07/17/2018
`NYSCJF DO%U%EM’§ COURT OF THE STXEIiZEO‘iEIiNEWCTEORIQ” 17/2018
`NEW YORK COUNTY
`
`PART1'
`
`INDEX N0.
`MOTION DATE
`MOTION 5E0. NO.
`
`
`
`HON. GERALD LEBOVITS
`PRESENT! ______JiL
`Justice
`Index Number: 153314/2012
`DEJESUS. FAUSTO
`vs.
`MOSHIASHVILI, TATIANA
`SEQUENCE NUMBER : 013
`DISMISS ACTION
`.,,
`
`.
`
`.
`
`.—
`
`_.
`
`,
`
`. were read on this motion tolfor
`The following papers, numbered 1 to
`Notice of Motion/Order to Show Cause — Affidavits — Exhibits
`
`Answering Affidavits — Exhibits
`
`Replying Affidavits
`
`I ”0(5)-
`INNS)-
`INo(s).
`
`
`
`Upon the foregoing papers, it is ordered that this motion is
`
`I
`
`L
`
`‘
`
`E gZI oak fan, +K{,H“f71zm aarIIw/owgn.
`
`/
`
`5‘
`
`~»
`
`.
`
`LU
`2I—(I)
`D'3
`OI—
`0IN
`I:
`n:InILin
`
`..
`I!
`5 E
`s 5
`It 20 m
`g I:
`(I) 0
`g E
`
`2 3NJ ..I
`
`E‘
`E %9 I-
`I- n:O
`2 E
`
`Dated:
`
`2 /// ’/ g
`
`T4§c~
`J.S.C.
`“ON‘
`
`_ NON-FINAL DISPOSITION
`1. CHECK ONE: ..................................................................... ECASE DISPOSED “*4“
`
`
`E OTHER
`El DENIED MGRANTED IN PART
`2. CHECK AS APPROPRIATE: ...........................MOTION IS: E] GRANTED
`
`3. CHECK IF APPROPRIATE: ................................................
`SETTLE ORDER
`a SUBMIT ORDER
`
`
`
`GE
`
`
`
`
`U DO NOT POST
`lof9
`1 of 9
`
`I] FIDUCIARY APPOINTMENT
`
`I] REFERENCE
`
`
`
`

`

`INDEX NO. 153314/2012
`
`
`FILED: NEW YORK COUNTY CLERK 07/17/2018 10:55 AM
`07
`
`
`
`
`
`
`3F DOC. NO. 278
`R«C«IV«D NYSCEF: 07/17/2018
`NYSCEF DOC. NO. 278
`RECEIVED NYSCEF: 07/17/2018
`
`Index No.2 153314/2012
`DECISION/ORDER
`Motion‘Seq. N0. 013
`
`
`
`NEW YORK STATE SUPREME COURT
`NEW YORK COUNTY: PART 7
`
` F
`
`TO DEJESUS,
`
`AUS
`
`Plaintiff,
`
`.
`
`-against~
`
`TATIANA MOSHIASHVILI and MICHAEL MOSHIASHVILI,
`
`Defendants.
`
`
`Recitation, as required by CPLR 2219 (a), of the papers considered in reviewing defendants’
`motion for a directed verdict and motion to set aside the verdict.
`
`'
`
`Numbered
`Papers
`Defendants’ Notice of Motion ..................................................................................................... 1
`Defendants’ Affirmation in Support ..
`
`Plaintiffs Affirmation in Opposition...
`Defendants’ Affirmation in Reply ............................................................................................... 4
`
`
`Sivin & Miller, LLP, New York (Edward Sivin of counsel), for plaintiff Fausto 'Dejesus.
`
`‘ Nicalini, Paradise, Ferretti & Sabella, New York (John J. Nicolini of counsel); for defendants
`Tatiana and Michael Moshiashvili.
`
`Gerald Lebovits, J.
`
`Plaintiff, Fausto Dejesus, filed a claim against defendants Tatiana and Michael
`Moshiashvili on May 30, 2012, seeking compensatory damages, punitive damages, special
`damages, attorney fees, and costs for claims involving abuse-of-process, malicious-prosecution,
`intentional infliction of emotional distress, defamation, and prima facie tort. (Complaint, at 11 1.)
`
`This court held a jury trial that began on February 20, 2018. After plaintiff rested,
`defendants moved for a directed verdict on the abuse-of-process and malicious-prosecution
`l, claims against Mr. Moshiashvili. This court reserved decision. The jury awarded compensatory
`damages of $200,000, jointly and severally, against Mr. and Ms. Moshiashvili, $200,000 against
`Ms. Moshiashvili in compensatory damages, $100,000 against Ms. Moshiashvili in punitive
`damages, and $50,000 against Mr. Moshiashvili in punitive damages.
`
`Mr, and Ms. Moshiashvili now move post-trial under CPLR 4401, 4404, and 5501 to (1)
`grant Mr. Moshiashvili’s motion for a directed verdict dismissing plaintiff‘s causes of action
`against him for malicious prosecution and abuse of process; (2) dismiss the malicious-
`
`20f9
`2 of 9
`
`

`

`FILED: NEW YORK COUNTY CLERK 0'
`
`INDEX NO. 153314/2012
`FILED: NEW YORK COUNTY CLERK 07/17/2018 10:55 AM
`
`
`
`
`
`
`NYSCEF DOC. NO. 278
`RaCaIVaD NYSCEF: 07/17/2018
`NYSCEF DOC. NO. 278
`RECEIVED NYSCEF: 07/17/2018
`
`prosecution claim against Ms. Moshiashvili; (3) dismiss plaintiff‘s claim for abuse of process as
`to both defendants; (4) dismiss plaintiff’s claim for false arrest as to Ms. Moshiashvili; (5) set
`aside the jury award for compensatory damages as excessive and duplicative; (6) set aside the
`jury verdict for punitive damages as excessive; and (7) direct the clerk to amend the jury extract,
`dated March 5, 2018, accurately to reflect damages the jury awarded. (Defendants’ Affirmation
`in Support, at 1] 3.)
`
`It is well-settled that “[a] trial court’s grant of a CPLR 4401 motion forjudgment as a
`matter of law is appropriate where the trial court finds that, upon the evidence presented, there is
`no rational process by which the fact trier could base a finding in favor of the nonmoving party.”
`(Szczerbiak v Film, 90 NY2d 553, 556 [1997].) CPLR 4404 (a) allows the court to set aside jury
`verdicts. When a party argues the jury verdict is not supported by sufficient evidence,
`“rationality is the touchstone for legal sufficiency.” (105 NY Jur 2d Trial § 462 [2d ed. 2018].)
`
`A court must review whether the jury verdict is sufficiently supported by the law and the
`trial evidence. (Cohen v Hallmark Cards, Inc, 45 NY2d 493, 499 [1978].) If the evidence is not
`“utterly irrational,” then “then it survives a legal sufficiency challenge.” (Higgett, N.Y. Prac. §
`440422 [2017 ed.].) It fails when “no valid line of reasoning and permissible inferences .
`.
`. could
`possibly lead rational men to the conclusion reached by the jury on the basis of the evidence
`presented at trial.” (Cohen, 45 NY2d at 499.) When reviewing this motion, “the trial court must
`afford the party opposing the motion every inference which may properly be drawn from the
`facts presented, and the facts must be considered in a light most favorable to the nonmovant.”
`(Szczerbiak, 90 NY2d at 556.) When viewing the evidence in the light most favorable to the
`nonmoving party, sufficient evidence was presented at trial for a rational jury to find defendants
`liable on plaintiff’s claims.
`
`Defendants’ motion is defective because he failed to provide a trial transcript for review.
`Given that defendant “seeks to set aside the verdict as against the weight of the evidence, ‘the
`absence of a transcript, or relevant portions thereof, preclude[s] a meaningful review.”’ (Frank v
`City ofNew York, 161 AD3d 713 [lst Dept 2018], quoting Gorbea v DeCohen, 118 AD3d 548,
`549 [1st Dept 2014].) Despite defendants” omission, this court sets forth its reasoning below.
`
`I.
`
`Defendants’ Motion for a Directed Verdict Dismissing Plaintiff’s Malicious-
`Prosecution and Abuse-of-Process claims against Mr. Moshiashvili, Motion to
`Set Aside the Verdict on Plaintiff’s Malicious-Prosecution Claim Against Ms.
`Moshiashvili, and Defendants’ Motion to Set Aside the Verdict on Plaintiff's
`Claim for Abuse-of-Process as to Both Defendants.
`
`Mr. Moshiashvili’s motion for a directed verdict dismissing plaintiff‘s causes of action
`for malicious prosecution and abuse of process is denied. Defendant argues that insufficient
`evidence supports the malicious-prosecution claim against him. According to Mr. Moshiashvili,
`the only evidence against him at trial is that he reviewed the criminal complaint and made phone
`calls to the District Attorney’s Office. (Defendants’ Affirmation in Support, at 1] 22.) This court
`disagrees.
`.
`
`3of9
`3 of 9
`
`
`
`

`

`INDEX NO. 153314/2012
`
`FILED: NEW YORK COUNTY CLERK 07/17/2018 10:55 AM
`
`
`
`
`
`NYSC.
`3F DOC. NO. 278
`C«.IV«D NYSCEF: 07/17/2018
`NYSCEF DOC. NO. 278
`RECEIVED NYSCEF: 07/17/2018
`
`To have a viable claim for malicious prosecution, “[t]he plaintiff must establish that (l)
`the defendant either commenced or continued a criminal proceeding against him; (2) that the
`proceeding terminated1n his favor; (3) that there was no probable cause for the criminal
`proceeding; and (4) that the criminal proceeding was instituted1n actual malice. ” (Martin v City
`ofA lbany, 42 NY2d 13,16 [I977].) Defendants argue “it must be shown that defendant played
`an active role in the prosecution, such as giving advice and encouraging or importuning the
`authorities to act.” ([Defendants’ Affirrnation in Support, at 1] 38], quoting Williams v CVS
`Pharmacy, Inc, 126 AD3d 890 [2nd Dept 2015].) But defendants cite only persuasive authority
`on the first element. The Court of Appeals has noted that it has “never elaborated on how a
`plaintiff in a malicious prosecution case demonstrates that the defendant commenced or
`continued the underlying criminal proceeding.” (Grucci v Grucci, 20 NY3d 893, 896 n [2012].)
`Rather, the commencement of a criminal action depends on the circumstances of each case. In
`Torres v Jones (26 NY3d 742, 760 [2016]), the Court of Appeals held that “by suggesting that a
`defendant other than a public prosecutor may be liable for supplying false information to the
`prosecutor in substantial furtherance of a criminal action against the plaintiff, we have implicitly
`recognized that such conduct may, depending on the circumstances, constitute the
`commencement or continuation of the prosecution.”
`
`The second element is satisfied when plaintiff can prove “that the criminal proceeding
`allegedly instigated by the defendant terminated in favor of the accused.” (Hollender v Trump
`Vil. Co—op., Inc, 58 NY2d 420, 425 [1983].)
`
`To satisfy the third element, “a plaintiff must allege that the underlying action was filed
`with a purpose other than the adjudication of a claim.” (Facebook, Inc. v DLA Piper LLP (US),
`'
`134 AD3d 610, 613 [lst Dept 2015] [internal quotation marks and citations omitted]; accord
`Restatement (Second) of Torts § 674 [1977]; of Medina v City QfNew York, 102 AD3d 101, 104
`[1 st Dept 2012] [“Probable cause is established absent materially impeaching
`circumstances, where, as here, the victim of an offense communicates to the arresting ofiicer
`information affording a credible ground for believing the offense was committed and identifies
`the accused as the perpetrator .
`.
`. .”] [internal citation omitted] [emphasis in original].) 1f the
`plaintiff has established the third element, then “a jury may, but is not required to, infer the
`existence of actual malice from the fact that there was no probable cause to initiate the
`proceeding .
`.
`. which permits the jury to infer one fact from other facts alreadyestablished.”
`(Martin v City ofAlbany, 42 NY2d 13, 17-18 [1977] [internal citation omitted].')
`
`Plaintiff established these elements by proving that defendants commenced a criminal
`action against plaintiff. Defendants were the only ones who supplied the police with information
`that led to plaintiff s arrest. Mr. Moshiashvili repeatedly called the DA to find out what was
`going on in plaintiff‘s case. He pressured the People to prosecute. Mr. Moshiashvili, by working
`along with his wife, assisted in continuing a false criminal action against plaintiff. There is no
`question that the criminal action was terminated in plaintiff’s favor. The People moved to
`dismiss the criminal action and told the criminal court judge that they could not prove Dejesus
`guilty beyond a reasonable doubt. Therefore, the jury in this action was permitted to infer actual
`malice.
`
`4of9
`4 of 9
`
`

`

`INDEX NO. 153314/2012
`FILED: NEW YORK COUNTY CLERK 07/17/2018 10:55 AM
`
`
`
`
`
`
`
`NYSCEF DOC. NO. 278
`RECEIVED NYSCEF: 07/17/2018
`NYSCEF DOC. NO. 278
`R«C«IV«D NYSCEF: 07/17/201d
`'
`.
`l
`
`Likewise, defendants’ motion to set aside the verdict on plaintiff’s malicious-prosecution
`claim against Ms. Moshiashvili is denied. Defendants argue that plaintiff failed to establish that
`Ms. Moshiashvili commenced a criminal action against plaintiff, Defendants argue they did not
`affirmatively induce an officer to act by taking an active part in the arrest or showing active and
`undue zeal. Malicious-prosecution claims do not require affirmative induction. The elements of a
`malicious-prosecution claim are outlined above. Further, “[a] person can also be said to have
`initiated a criminal proceeding by knowingly providing false evidence to law enforcement
`authorities or withholding critical evidence that might affect law enforcement’s determination to
`make an arrest.” (Moorhouse v Std, New York, 124 AD3d 1, 8 [lst Dept 2014].)
`
`Defendants’ motion for a directed verdict dismissing plaintiffs abuse-of-process claims
`against Mr. Moshiashvili is denied, and defendants’ motion to set aside the verdict on plaintiff's
`claim for abuse of process as to both defendants is denied. The Court of Appeals has held that
`“abuse of process may be defined as the misuse or perversion of regularly issued legal process
`for a purpose not justified by the nature of the process.” (Bd. ofEd. ofFarmingdale Union Free
`Sch. Dist. v Farmingdale Classroom Teachers Ass ’n, Inc, Local 1889 AFT AFL—CIO, 38 NY2d
`397, 400 [1975].) The elements of an abuse-of-process claim are “(1) regularly issued process,
`either civil or criminal, (2) an intent to do harm without excuse orjustification, and (3) use of the
`process in a perverted manner to obtain a collateral objective.” (Curiano v Suozzi, 63 NY2d 113,
`116 [1984].) By intentionally instigating a false criminal action against plaintiff, the jtn'y could
`rationally find defendants liable for abusing legal process. Defendants also argue that plaintiff
`did not plead or prove actual or special damages required for an abuse-of—process claim.
`(Defendants’ Affirmation in Support, at 1] 64.) The requirements of actual or special damages are
`satisfied when a plaintiff testifies of legal costs. (See Parkin v Cornell Univ.. Inc, 78 NY2d 523,
`530 [1991] [“We also conclude that the Appellate Division erred in dismissing plaintiffs” cause
`of action for abuse of process. We note first our disagreement with that court’s conclusion that
`plaintiffs failed to plead and prove actual or special damages. To the contrary, both plaintiffs
`testified that they had incurred legal expenses in connection with their defense of the criminal
`charges brought against them.”].) Plaintiff’ s abuse-of-process claim is valid. Plaintiff and his
`wife testified of his legal expenses at trial.
`
`Further, Mr. Moshiashvili had the opportunity to defend himself but chose not to testify
`at trial. Mr. Moshiashvili is not required to testify, but “[w]hile a party may not be compelled to
`answer questions that might adversely affect his criminal interest, the privilege does not relieve
`the party of the usual evidentiary burden attendant upon a civil proceeding .
`.
`. [and] a defendant
`in a civil suit assumes a substantial risk when he chooses to assert his privilege?” (Access
`Capital, Inc. v DeCicco, 302 AD2d 48, 51, 53 [lst Dept 2002] .) When a defendant invokes a
`privilege, “a negative inference may be drawn in the civil context when a party invokes the right
`against self-incrimination.” (El-Dehdan v El—Deha’an, 26 NY3d ‘19, 37 [2015].) Mr. Moshiashvili
`forewent his right to refute the claims made against him. Without testimony to persuade the jury
`otherwise, the jury found sufficient evidence to hold Mr. Moshiashvili liable. (See e. g. Mar.
`Midland Bank v John E. Russo Produce Ca, Inc., 50 NY2d 31, 42 [1980] [“Whether ajury in
`the context of a conventional civil case may be instructed to consider a party’s invocation of the
`privilege against self incrimination when called to the stand .
`.
`. the parties are on an equal
`footing and the only disadvantage threatened is liability to compensate an adversary for damages.
`We therefore decline to extend to civil cases a rule originally designed as a safeguard in criminal
`
`50f9
`5 of 9
`4
`
`

`

`INDEX NO. 153314/2012
`FILED: NEW YORK COUNTY CLERK 07/17/2018 10:55 AM
`
`
`
`
`
`
`NYSCEF DOC. NO. 278
`R*.C*.IV*.D NYSCEF
`NYSCEF DOC. NO. 278
`RECEIVED NYSCEF: 07/17/2018
`
`prosecutions.”].) Accordingly, the jury was not irrational in its conclusion that both Mr. and Ms.
`Moshiashvili are liable for malicious prosecution and abuse of process.
`
`11.
`
`Defendants’ Motion to Set Aside the Verdict on Plaintiff’s Claim for False
`Arrest as to Ms. Moshiashvili.
`
`Defendants” motion to dismiss the false arrest claim against Ms. Moshiashvili is denied.
`Defendants argue that plaintiff never alleged “false arrest” and that it was duplicative for the jury
`to consider both false arrest and malicious prosecution. (Defendants’ Affirmation in Support, at 1]
`51.) Defendants also argue that “the civilian must have acted so dominantly such to divest the
`police of their free will.” (Defendants’ Affirmation in Support, at 11 53.)
`
`Plaintiff sufficiently pleaded false arrest. Under CPLR 3013, a plaintiff is required to
`state a pleading sufficiently particular to give the court and the parties notice. Since defendants
`argued that summary judgment should be granted in their favor on the claim of false arrest, they
`must have had sufficient notice of the pleading. This issue, in any event, is not a trial issue.
`
`Defendants are mistaken about duplication. The Court of Appeals has held “while false
`arrest and malicious prosecution are ‘kindred actions’ insofar as they often aim to provide
`recompense for illegal law enforcement activities, each action ‘protects a different personal
`interest and is composed of different elements.” (Torres, 26 NY3d at 760 [internal citation
`omitted].)
`
`Further, plaintiff need not prove that an officer was divested of his free will. Rather, false
`arrest occurs “[w]henever a person unlawfully obstructs or deprives another of his freedom to
`choose his own location.” (Broughton v State, 37 NY2d 451, 456 [1975].) When a citizen, and
`not an officer, is accused of false arrest, it has been “said that if the defendant directed an officer
`to take the plaintiff into custody, he was liable for false imprisonment.” (Vernes v Phillips, 266
`NY 298, 301 [1935].) Here, also, the jury was not irrational in finding Ms. Moshiashvili liable
`for false arrest.
`
`111.
`
`Defendants’ Motion to Set Aside the Jury Award for Compensatory Damages as
`Excessive and Duplicative and Defendants’ Motion to Set Aside the Jury Verdict
`for Punitive Damages as Excessive.
`
`Defendants’ motion to set aside the jury award for compensatory and punitive damages
`as excessive and duplicative is denied. The jury awarded- $200,000 against both Mr. and Ms.
`Moshiashvili for malicious prosecution and abuse of process and $200,000 against Ms.
`Moshiashvili for false arrest and defamation/slander. The jury also awarded punitive damages of
`$100,000 against Ms. Moshiashvili, and $50,000 against Mr. Moshiashvili. This court does not
`find any basis for defendants’ assertion that the compensatory award for abuse of process and
`defamation/slander are excessive. Defendants’ motion on these two claims is denied.
`
`The compensatory award for malicious prosecution and false arrest was not excessive.
`For damages to be excessive, they must “deviate[] materially from what would be reasonable
`O
`compensation.” (CPLR 5501 [c].) Reasonable6comgen59ation is determined by evaluating
`6 of 9
`
`

`

` FJELED: NEW YORK' COUNTY CLERK 07m
`INDEX NO. 153314/2012
`FILED: NEW YORK COUNTY CLERK 07/17/2018 10:55 AM
`
`
`
`
`
`
`NYSCEF DOC. NO. 278
`.
`RaCaIVaD NYSCEF: 07/17/2018
`NYSCEF DOC. NO. 278
`RECEIVED NYSCEF: 07/17/2018
`
`“whether the appealed award deviates materially from comparable awards.” (Donlon v City of
`New York. 284 AD2d 13, 14 [lst Dept 2001].) However, comparable awards are not dispositive.
`Despite “possessing the power to set aside an excessive jury verdict, a trial court should
`nonetheless be wary of substituting its judgment for that of a panel of fact findeis whose peculiar
`function is the fixation of damages. Modification of damages, which is a speculative endeavor,
`cannot be based upon case precedent alone, because comparison of injuries in different cases is
`virtually impossible.” (So v Wing Tat Realty, Inc., 259 AD2d 373, 374 [lst Dept 1999].)
`
`The facts ofthis case are similar to Maxwell v City ofNew York (156 AD2d 28 [1st Dept
`1990].) In Maxwell, the court held that the jury’s monetary award of $175,000 for malicious
`. to
`.
`prosecution was not excessive where “[p]laintiff, who had worked steadily for seven years .
`build a reputation for honesty and responsibility, was arrested on the job and escorted out in front
`of numerous colleagues to be placed in a police vehicle .
`.
`.
`. In addition to his substantial
`emotional pain and humiliation, he incurred a not insignificant loss in wages and was compelled
`to pay counsel fees.” (Id. at 35.) Here, Ms. Moshiashvili’s allegations affected plaintiff‘s
`personal and professional reputation. Plaintiff was accused and arrested in front of building, in
`front of the residents and his co-workers. He was held in jail for 25 hours before‘ being released
`on bail. He was suspended from work for nine months, he had to spend time going back and
`forth to court; he suffered from lost wages (later reimbursed), and accumulated attorney fees. At
`trial, testimony revealed that Ms. Moshiashvili, while wearing her NYPD Auxiliary Police
`uniform and possessing a gun, had accused and intimidated other residents and employees by
`threatening to arrest them for being noisy and not completing repairs to her satisfaction. Given
`the similarity to Maxwell, the compensatory award was not unreasonable. (See also
`Sital v City ofNew York, 60 AD3d 465 [lst Dept 2009] [awarding $150,000 for false arrest for
`20 hours in custody]; Vitale v Hagan, 132 AD2d 468 [lst Dept 1987] [upholding jury award of
`$750,000 for malicious prosecution], modfd on other grounds, 71 NY2d 955 [1988].)
`_
`
`To reduce punitive—damage awards, a court-must be able to say that the award was-
`unwarranted as a matter oflaw. (See Cardozo v City ofNew York, 139 AD3d 151, 166 [lst Dept
`2016] [“Although the jury’s punitive damages awards may be excessive, it cannot be said that
`plaintiff is not entitled to these damages as a matter of law.”].) Punitive damages are given based
`on “the sound discretion of the original trier of the facts .
`.
`. and such an award is not lightly to be
`disturbed.” (Nardelli v Stamberg, 44 NY2d 500, 503 [1978] [internal citation omitted].) Along
`with reviewing comparable awards, the First Department has looked at whether the award of
`punitive damages is in proportion to the compensatory damages award. (See Manolas v 303 W.
`42nd St. Enterprises, Inc, 173 AD2d 316, 317 [1st Dept 1991] [reducing damages where “[t]he
`jury awarded punitive damages in an amount almost eighty times that awarded for compensatory
`damages”].) The jury awarded $100,000 in punitive damages against Ms. Moshiashvili, half the
`amount the jury awarded in compensatory damages.1 The jury awarded $50,000‘in punitive
`damages against Mr. Moshiashvili. This is a quarter of the award for compensatory damages.
`When a wrongdoer is found liable, “malicious prosecution precludes a determination as a matter
`of law that punitive damages are improper, for the actual malice necessary to support an action
`
`
`' Defendants state that “[a]s to Tatiana Moshiashvili, the punitive damages award was not
`7 of 9
`disproportionate to the compensatory damaggs aQa‘i—"d, gut was nonetheless excessive in and of
`ant?” {hpfianrlqntc’ ani—Tflfll Notice of Motion. at ‘11 93'.)
`
`

`

`INDEX NO. 153314/2012
`
`FILED: NEW YORK COUNTY CLERK 07/17/2018 10:55 AM
`
`
`
`
`
`
`NYSC.
`NYSCEF DOC. NO. 278
`RECEIVED NYSCEF: 07/17/2018
`LF DOC. NO. 278
`R'flCfiIVfiD NYSCEF: 07/17/2018
`
`for malicious prosecution also serves to justify an award of exemplary damages.l” (Nardelli, 44
`NY2d at 503.) Defendants were found liable for malicious prosecution, and the punitive damages
`awarded are appropriate on this claim.
`
`Despite defendants contention otherwise, it is not duplicative for plaintiff to recover on
`separate and distinguishable tort claims. Rather, a plaintiff cannot recover on both prima facie
`tort and traditional tort arising from the same issue (See Bd. ofEd ofFarmmgdale Union Free
`Sch Dist, 38 NY2d at 406 [“[A] cause of action in prima facie tort cannot ex1st ,where all the
`damages sustained are attributable to a specific recognized tort.
`.”;] accord Ruza v Ruza, 286
`AD 767, 769 [lst Dept 1955] [“Where specific acts, recognized astortious in the law, are
`asserted the remedies lie onlyin the classic categories of tort. T.herers, then,ino occasion for
`invoking the doctrine of prima facie tort.
`.”.]) Plaintiff‘s claim of prima facieitort was
`dismissed on summary judgment. Therefore, no prima facie tort is at issue in this post--trial
`motion. Accordingly, this court finds thereis no duplicationin thejury 5 award of damages
`
`:IV.
`
`Defendants’ Motion to Direct the Clerk to Amend the Jury Extraict, Dated
`March 5, 2018 Accurately to Reflect Damages Awarded by the Jury.
`
`Defendants’ motion to direct the clerk to amend the Jury Extract dated March 5, 2018 to
`accurately reflect damages awarded by thejury is granted per the parties joint stipulation.
`Defendant correctly states that thejury awarded $200,000 against Tatiana and Michael, and
`$200,000 against Tatiana individually, not $400,000 against both of them together.
`
`Accordingly, it is hereby
`
`ORDERED that defendants motion for a directed verdict dismissing plaintiffs causes of
`action against for malicious-prosecution and abuse-of--process is denied; and it is further
`ORDERED that defendants’ motion to set aside the verdict on plaintiffs malicious-
`prosecution claim against Tatiana Moshiashvili is denied; and it is further
`‘
`
`ORDERED that defendants motion to set aside the verdict on plaintiff‘s‘l claim for abuse-
`of——process as to both defendantsrs denied; and it is further
`-
`f
`-|
`
`ORDERED that defendants’ motion to set aside the verdict on plaintiffs claim for false
`.
`arrest as to Tatiana MoshiashviliIS denied, and it is further
`
`ORDERED that defendants motion to set aside thejury award for compensatory
`damages as excessive and duplicativeis denied; and it is further
`.
`1i
`it
`
`ORDERED that defendants’ motion to set aside set aside the jury award for
`compensatory damages as excessive and duplicative is denied; and it is further
`‘.
`
`ORDERED that defendants’ motion to set aside thejury award for punitive damages as
`_
`excessive is denied, and it is further
`
`8of9
`8 of 9
`
`
`
`

`

`INDEX NO. 153314/2012
`FILED: NEW YORK COUNTY CLERK 07/17/2018 10:55 AM
` FILED: NEW‘ YORK COUNTY CLERK 07W
`
`
`
`
`
`
`NYSCEF DOC. NO. 278
`RECEIVED NYSCEF: 07/17/2018
`NYSCEF DOC. NO. 278
`RaCaIVyD NYSCEF: 07/17/2018
`
`ORDERED that defendants’ motion to direct the clerk to amend the jury extract dated
`March 5, 2018 to accurately reflect damages awarded by the jury is granted.
`
`Dated: July 11, 2018
`
`J.S.C.
`
`lTS
`,HON. GERALD LEBodshc.
`
`
`
`9of9
`9 of 9
`
`