
    Doris Feinberg, Appellant, et al., Plaintiff, v Saks & Co. et al., Respondents, et al., Defendant.
    Argued April 1, 1982;
    decided May 20, 1982
    
      POINTS OF COUNSEL
    
      Leon J. Greenspan and Joseph D. De Salvo for appellant.
    I. The verdict of the jury is consistent and should not be set aside. (Martin v City of Albany, 42 NY2d 13; Somersall v New York Tel. Co., 74 AD2d 302, 52 NY2d 157; Daly v Casey, 38 NY2d 808; Mintz v Festa, 29 AD2d 689, 23 NY2d 750; Munoz v City of New York, 18 NY2d 6; Mullen v Sibley, Lindsay & Curr, 51 NY2d 924; Guion v Associated Dry Goods Corp. [Lord & Taylor Div.], 43 NY2d 876; Oakley v City of Rochester, 71 AD2d 15, 51 NY2d 908; People v Singletary, 37 NY2d 310; People v Scott D., 34 NY2d 483.) II. A reasonable suspicion requires much less proof than probable cause and is sufficient to authorize certain warrantless intrusions as constitutionally permissible. (People v Rivera, 14 NY2d 441; People v Castro, 53 NY2d 1046; People v Peters, 18 NY2d 238; People v Arthurs, 24 NY2d 688; People v Rosemond, 26 NY2d 101; People v Mack, 26 NY2d 311; People v Johnson, 30 NY2d 929; People v Moore, 32 NY2d 67; People v Scott D., 34 NY2d 483; People v Green, 35 NY2d 193.) III. Not every governmental intrusion in the form of detention short of a formal arrest requires proof of probable cause. (Terry v Ohio, 392 US 1; Dunaway v New York, 442 US 200; People v De Bour, 40 NY2d 210; People v Rivera, 14 NY2d 441; People v Peters, 18 NY2d 238; United States v BrignoniPonce, 422 US 873; Delaware v Proust, 440 US 648; United States v Mendenhall, 446 US 544; Reid v Georgia, 448 US 438; People v Perel, 34 NY2d 462.) IV. The jury correctly found a cause of action for malicious prosecution. (Broughton v State of New York, 37 NY2d 451; Martin v City of Albany, 42 NY2d 13; Munoz v City of New York, 18 NY2d 6; Burt v Smith, 181 NY 1; Nardelli v Stamberg, 44 NY2d 500; Di Maggio v O’Brien, 497 F Supp 870; Daughtry v Arlington County, Va., 490 F Supp 307; Dean v Kochendorfer, 237 NY 384; Halsey v New York Soc. for Suppression of Vice, 234 NY 1.) V. Plaintiff was entitled to compensatory and punitive damages for the malicious prosecution. (Watson v City of New York, 57 Misc 2d 542; White v Madison, 26 NY 117; Hynes v Patterson, 95 NY 1; Cooper v Weissblatt, 154 Misc 522; Madison County Constr. Co. v State of New York, 177 Misc 777; Delahanty v Walzer, 271 App Div 886, 298 NY 820; Schindler v Lamb, 25 Misc 2d 810, 10 AD2d 826; Conway v Samet, 59 Misc 2d 666; Loeb v Teitelbaum, 77 AD2d 92; Giagheddu v Town of Colonie, 75 AD2d 198.)
    A. Paul Goldblum for Saks & Company, respondent.
    I. The “reasonable grounds to believe” of section 218 of the General Business Law and the “probable cause” of malicious prosecution are coextensive. (People v De Bour, 40 NY2d 210; Burdeau v McDowell, 256 US 465; Sackler v Sackler, 15 NY2d 40; Emmer v Emmer, 69 AD2d 850; Jacques v Sears, Roebuck & Co., 30 NY2d 466; Maxie v Gimbel Bros., 102 Misc 2d 296; Heyne v Blair, 62 NY 19; Burt v Smith, 181 NY 1; Tota v Alexander’s, 63 Misc 2d 908, 38 AD2d 892; Oakley v City of Rochester, 71 AD2d 15, 51 NY2d 908.) II. The “reasonable grounds to believe”, also known as “probable cause”, were conclusively established in the action for false detention. (Standard Oil Co. v Amazonias. Co., 79 NY 506; Matter of Burk, 298 NY 450; Gray v Brooklyn Hgts. R. R. Co., 175 NY 448.) III. The “probable cause” did not disappear after the initial “stop” of plaintiff and plaintiff is estopped from so asserting. (Magagnos v Brooklyn Hgts. R. R. Co., 128 App Div 182; Loeb v Teitelbaum, 77 AD2d 92; Hopkinson v Lehigh Val. R. R. Co., 249 NY 296; Lewis v Counts, 81 AD2d 857.) IV. Vicarious liability for punitive damages is not an issue before this court. (Craven v Bloomingdale, 171 NY 439; Nardelli v Stamberg, 44 NY2d 500; Lake Shore Ry. Co. v Prentice, 147 US 101; Rose v Imperial Engine Co., 127 App Div 885; Spathis v King Kullen Grocery Co., lb AD2d 598.)
    
      Francis J. Henderson for Norma Sanderson, respondent.
    I. The jury verdict for plaintiff on the second cause of action for malicious prosecution is inconsistent with the jury verdict for defendants on the first cause of action for false arrest. (Broughton v State of New York, 37 NY2d 451; Martin v City of Albany, 42 NY2d 13; Mulder v U. S. Slicing Mach. Co., 228 NY 88; Loeb v Teitelbaum, 11 AD2d 92; Burt v Smith, 181 NY 1, 203 US 129; Carl v Ayers, 53 NY 14; Hyman v New York Cent. R. R. Co., 240 NY 137; Rawson v Leggett, 184 NY 504; Simpson v Coastwide Lbr. & Supply Co., 239 NY 492; Day v Levine, 181 App Div 261, 228 NY 588.) II. The verdict for defendants on the first cause of action for false arrest is final. (Gray v Brooklyn Hgts. R. R. Co., 175 NY 448.)
   OPINION OF THE COURT

Jasen, J.

Plaintiff, Doris Feinberg, brought this action for false arrest and malicious prosecution after having been acquitted of a charge of petit larceny. That criminal charge had been filed against her by security personnel of defendant Saks & Company. At trial, a general verdict was returned in Mrs. Feinberg’s favor on the cause of action for malicious prosecution, and in favor of defendants on the false arrest cause of action.

Although the defendants had not requested a charge that the jury’s finding on the false arrest cause of action should in any way affect their determination on the other cause of action for malicious prosecution, defendants moved to set aside the malicious prosecution verdict for Mrs. Feinberg on the ground that it was inconsistent with the verdict for defendants on the false arrest cause of action. This objection to the verdicts was raised for the first time after the jury had been discharged.

The trial court ruled that the two verdicts were not inconsistent and specifically noted that the defense had failed to raise a timely objection. (Cf. Barry v Manglass, 55 NY2d 803, 806.) On appeal, the Appellate Division nonetheless reached the unpreserved issue, reversed the trial court, and dismissed plaintiff’s cause of action for malicious prosecution (83 AD2d 952). The court held that the defendants, who had probable cause to subject plaintiff to reasonable detention (General Business Law, § 218), had a complete defense to a cause of action for false arrest or imprisonment, and existence of such probable cause will also serve to bar an action for malicious prosecution unless some intervening fact exonerating plaintiff has become known to defendants between the time of detention and the time of prosecution. The Appellate Division concluded that the verdict for defendants on the cause of action for “false detention” and verdict for plaintiff on the cause of action for malicious prosecution were inconsistent since there were no intervening circumstances in this case which would have vitiated defendants’ probable cause to detain plaintiff.

Although the order of the Appellate Division states that the reversal was on the law, it is clear that, in reaching the unpreserved legal issue as to whether the verdicts were inconsistent, the Appellate Division exercised its broad discretionary powers of review. The subsequent reversal by the Appellate Division makes the order of that court appealable to this court. (CPLR 5601, subd [a], par [ii].) The legal issue presented, however, is not subject to our review as defendants during trial failed to make a timely objection to preserve it for our review. (CPLR 5501; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 5501:2, p 23; Siegel, New York Practice, § 529, p 731.) This court has no power to review either the unpreserved error or the Appellate Division’s exercise of discretion in reaching that issue. (E.g., 7 Weinstein-Korn-Miller, NY Civ Prac, par 5501.11.)

We do have the power, however, to review the corrective action taken by the Appellate Division in dismissing plaintiff’s cause of action for malicious prosecution after determining that the verdicts of the jury were inconsistent. (Maguire v Barrett, 223 NY 49.) The Appellate Division could reverse on the law and dismiss the complaint only if there was no evidence at trial that the defendant, between the time of detention and the time of instituting the criminal proceeding against the plaintiff, had knowledge of some intervening fact exonerating plaintiff. Put another way, the Appellate Division’s dismissal of the complaint would be proper only if there was no evidence upon which the jury could have found an intervening circumstance necessary to support an inference of malice. (Martin v City of Albany, 42 NY2d 13.) In resolving this question, appellate courts “should consider the facts adduced at trial in a light most favorable to the plaintiff and the plaintiff is entitled to the benefit of every favorable inference that can reasonably be drawn from the facts.” (Martin v City of Albany, supra, at p 18.)

We believe that there is some evidence in the record before this court which, if credited by the jury, could establish an intervening circumstance supporting an inference of malice and, therefore, the Appellate Division should not have dismissed plaintiff’s complaint but, rather, should have ordered a new trial. (Martin v City of Albany, supra, at p 16; NY Const, art I, § 2.) Thus, the proper disposition of this case would have been to order a new trial so that a properly charged jury could determine whether, on the facts presented, plaintiff should recover from defendants on the cause of action for malicious prosecution.

No appeal having been taken from so much of the judgment as found in favor of defendants on the cause of action for false arrest, that issue is not before the court.

For the reasons stated, the order of the Appellate Division should be modified by deleting so much of that order as dismisses the cause of action for malicious prosecution, and the case remitted to Supreme Court, Westchester County, for a new trial on the cause of action for malicious prosecution, with costs to abide the event, and, as so modified, the order should be affirmed.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order modified and case remitted to Supreme Court, Westchester County, for a new trial in accordance with the opinion herein, with costs to abide the event, and, as so modified, affirmed.  