York v. State

Judgment unanimously modified on the facts by increasing claimant’s damages for pain and suffering to the sum of $100,000 with appropriate interest, and as modified affirmed without costs. Memorandum: The court awarded claimant the sum of $28,500 as damages for pain and suffering on his causes of action for negligent use of excessive force and assault and granted the State partial summary judgment dismissing his cause of action for malicious prosecution. Claimant, then 60 years of age, was assaulted by the State Police following a traffic stop. Claimant suffered an injury to the rotator cuff of his right shoulder with 60% permanent loss of function, as well as multiple abrasions and contusions and substantial pain. The damages awarded for pain and suffering were inadequate and, on this record, we determine that an award of $100,000 is appropriate (see, May v European Health Spas, 103 AD2d 1032).

The court erred in granting partial summary judgment *965dismissing claimant’s cause of action for malicious prosecution. There are triable issues of fact whether claimant was charged based upon false testimony by a State Police officer before the Grand Jury and whether the underlying proceeding was terminated as a result of a plea bargain (see, Zebrowski v Bobinski, 278 NY 332), or by an outright dismissal (see, Brown v Brown, 87 AD2d 680, 681). (Appeal from judgment of Court of Claims, Corbett, J. — assault.) Present — Doerr, J. P., Den-man, Green, Pine and Lawton, JJ.