Simmonds v. Abraham & Straus Department Store, Inc.

In an action to recover damages for false arrest, the defendant appeals from so much of a judgment of the Supreme Court, Kings County (Pino, J.), entered April 12, 1985, as granted a directed verdict against the defendant on the issue of liability.

Judgment reversed, insofar as appealed from, on the law and the facts, and new trial granted on the issue of liability only, with costs to abide the event.

The defendant detained the plaintiff, a former sales clerk, at an office near its store, and subsequently had her arrested. The plaintiff allegedly failed to record a sale and then put the cash proceeds of the sale in her pocket. The trial court erred in directing a verdict in the plaintiff’s favor at the close of the case. The test is whether, by any rational process, the jury could find for the defendant (Holmberg v Donohue, 24 AD2d 569, 570). We determine that the evidence was sufficient to make the issue of the defendant’s justification a question of fact because the defendant met its burden of pleading and producing evidence to support the affirmative defense of justification (see, Broughton v State of New York, 37 NY2d 451, 458, cert denied sub nom. Schanbarger v Kellogg, 423 US 929). The reasonableness as to the time and manner of the detention (see, Parvi v City of Kingston, 41 NY2d 553, 558) is a question which must be remitted to the trial court for a jury determination. Bracken, J. P., Niehoff, Rubin and Lawrence, JJ., concur.