Opinion
October 26, 1981
In an action to recover damages for unlawful arrest, assault, false imprisonment and negligence, plaintiff appeals from so much of a judgment of the Supreme Court, Kings County (Feiden, J.), entered June 19, 1980, as dismissed the first, second, third and fourth causes of action of his complaint, upon a directed verdict, after a jury trial limited to the issue of liability only. Judgment modified, on the law and as a matter of discretion in the interest of justice, by deleting the provision dismissing the first, third and fourth causes of action. As so modified, judgment affirmed insofar as appealed from, the first, third and fourth causes of action are reinstated and a new trial is granted with respect thereto, with costs to abide the event. The city concedes that there should be a new trial of the unlawful arrest cause of action because of the court's refusal to charge, as requested, that the burden of proof was on the city to prove the affirmative defense of justification for the warrantless arrest of plaintiff (see Broughton v. State of New York, 37 N.Y.2d 451, 458, cert den sub nom. Schanbarger v. Kellogg, 423 U.S. 929; Budgar v. State of New York, 98 Misc.2d 588, 591). Reversal of the dismissal of the assault charges is also required because of the confusing and inadequate charge to the jury and special verdict interrogatories (see Miocic v. Winters, 66 A.D.2d 770; Silva v. Penn Cent. Transp. Co., 79 A.D.2d 632). We have not reinstated the second cause of action because a claim for punitive damages does not constitute a separate cause of action for pleading purposes (see Schwed v. Turoff, 73 A.D.2d 615). Hopkins, J.P., Rabin, Cohalan and O'Connor, JJ., concur.