Opinion
SCB 2271/18
05-20-2019
Thalia TAYLOR, Plaintiff, v. FAMILY DOLLAR STORES OF NY, INC., and Edward Mintah, Defendants.
Plaintiff appeared prose. Counsel for Defendants: Mintzer Sarowitz Zeris Ledva & Meyers, LLP
Plaintiff appeared prose.
Counsel for Defendants: Mintzer Sarowitz Zeris Ledva & Meyers, LLP
Fidel E. Gomez, J.
The instant action is for assault and battery. Specifically, pro se plaintiff sues alleging that she was assaulted by defendant EDWARD MINTAH (Mintah), an employee of defendant FAMILY DOLLAR STORES OF NY, INC. (Family Dollar), while shopping within a Family Dollar store. Plaintiff seeks $ 5,000 in damages for personal injuries and lost wages .
While plaintiff appeared without counsel, beyond explaining her basic rights - the right to testify, question witnesses, proffer documentary evidence and interpose objections, the Court provided her no additional aid. While courts will generally accord "pro se litigants some leeway in the presentation of their case, pro se litigants must still abide by court procedures and calendars" (Stoves & Stones, Ltd. v. Rubens , 237 AD2d 280, 280 [2d Dept 1997] ). This, of course, is because it is well settled that "[a] litigant appearing pro se acquires no greater right than any other litigant and such appearance may not be used to deprive defendants of the same rights enjoyed by other defendants" (Roundtree v. Singh , 143 AD2d 995, 996 [2d Dept 1998] ). Accordingly, this Court did not accord pro se plaintiff any special treatment and held her to the same standards of practice that it held defendants' lawyer.
Plaintiff pleaded that she sought damages for arrest and having the Administration for Children's Services (ACS) called to her home. However, upon the testimony offered at trial, the Court holds that the damages proven at trial are for personal injuries and the pain and suffering arising therefrom and lost wages for the time she proves she missed as a result defendants' actions.
Upon the testimony and evidence proffered at trial, the Court hereby finds in favor of plaintiff.
Plaintiff testified as follows: On March 13, 2018, while accompanied by her son Preston Taylor (Preston), she was grabbed and scratched by Mintah while shopping at the Family Dollar store located at 3560 Jerome Avenue, Bronx, NY. Plaintiff entered the store shortly before 4:45PM to shop. Unable to find an empty shopping cart at the front of the store, she grabbed an empty cart in one of the isles. As she grabbed the cart, Mintah approached her, told her she could not have the cart, and that she should use a basket instead. Plaintiff indicated that the cart was not being used and that she wanted to use it. As plaintiff grabbed the cart, Mintah grabbed her from behind and whispered "that the manager wouldn't be able to help her." Plaintiff pulled away and grabbed the cart. Mintah grabbed the cart as well and began to pull it away from the plaintiff. Mintah also attempted to pry plaintiff's hands from the cart, thereby scratching plaintiff's fingers. Because she felt threatened, plaintiff sprayed Mintah with her pepper spray. Mintah screamed and let go of the cart, at which point, plaintiff left the store. Approximately three days prior to this incident, while plaintiff and Preston shopped at the same store, Mintah yelled and/or insulted Preston who then reported the same to the store Manager.
After plaintiff left the store and while at home, she began to experience pain in her left shoulder and noticed cuts on her fingers. Because the pain impeded her ability to undress, she went to Montefiore Medical Center where she was treated. She received injections for the pain and to prevent an infection. Months later, on May 11, 2018, the police came to plaintiff's home and arrested her because Mintah pressed charges for assault as a result of being pepper sprayed. Plaintiff spent several hours at the precinct and was given a Desk Appearance Ticket. Subsequently, as a result of plaintiff's arrest and because Preston, then nine, was with her at the Family Dollar store during the incident giving rise to the arrest, ACS reported to her home and initiated an investigation. As a result of the incident and her injuries plaintiff missed four days of work. At the time, she was employed as a Home Health Aide for Best Care earning $ 13 an hour and working eight hours per day. As a result of the arrest and the ACS investigation, requiring that plaintiff meet with ACS employees, plaintiff missed five days of work. At that time she was working at CVS earning $ 15.50 per hour and working four hours per day.
Preston testified at trial with regard to the events at the Family Dollar store and corroborated the testimony provided by plaintiff.
Criminal Procedure Law § 60.20(2) states that "A witness less than nine years old may not testify under oath unless the court is satisfied that he or she understands the nature of an oath." Inasmuch as the CPLR is silent on this issue, the rule has been applied in civil cases (Muscoreil By Vigneri v. Pool Mart, Inc. , 107 AD2d 1025, 1026 [4th Dept 1985] ["Special Term erred, however, in directing that the examination not be under oath. It should have ordered a preliminary examination to determine the competency of the infant."]; Tuohy v. Gaudio , 87 AD2d 610, 611 [2d Dept 1982] ; Jensen v. Shady Pines Inc. , 32 AD2d 648, 648 [2d Dept 1969] ). As such a witness less than nine years old can only testify if the court determines, after a relevant on the record inquiry, that the witness will understand the nature of the oath to which he must agree (Muscoreil By Vigneri at 1026; Tuohy at 611; Jensen at 648). Here, while Preston was nine, in an over abundance of caution, the Court nevertheless conducted a swearability hearing and determined that he understood the nature of the oath such that he was competent to testify.
Plaintiff submitted several documents in evidence . Specifically, she submitted a record from Montefiore Medical Center, which indicates that on March 13, 2018, she was treated there for shoulder pain and cuts to her hand. Plaintiff also tendered a pay stub from Best Care, which, while dated prior to March 13, 2018, indicated that her rate of pay was $ 13 per hour and that she worked an approximately eight hours a day. Plaintiff submitted another pay stub from CVS which indicated that after March 13, 2018, she was employed thereat earning $ 15.50 per hour and working an average of four hours per day.
The Court normally endeavors to describe the documentary evidence at trial with more specificity. Unfortunately, here, either plaintiff failed to leave the evidence described with the Court at the conclusion of the trial or it was lost. Nevertheless, the Court had an opportunity to review the evidence as did counsel for defendant and the evidence established the facts described in this decision.
Defendant Mintah did not appear at trial and Family Dollar, in its case in-chief, only elicited testimony from Felix Hernandez (Hernandez), who testified as follows: On March 13, 2018, Hernandez was the manager of the Family Dollar store where Mintah was employed and where the incident herein occurred. At some point, he heard Mintah begin to scream and reported to Mintah's location. Mintah indicated that he had been pepper sprayed by plaintiff and Hernandez took him to the back of the store to provide him aid. The police and an ambulance were called to the scene but by the time they arrived plaintiff had left the store. The store was equipped with video surveillance, which Hernandez reviewed after the incident. Hernandez testified that the video showed that Mintah and plaintiff were arguing over a shopping cart but that it did not show that Mintah grabbed or otherwise touched plaintiff. Hernandez testified that Mintah was no longer employed with Family Dollar.
It is well settled that "in a bench trial, no less than a jury trial, the resolution of credibility issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference" ( People v. McCoy , 100 AD3d 1422, 1422 [4th Dept 2012] ). Moreover,
[a] judicial factfinder should make credibility determinations on the basis of demeanor, forthrightness in answering, consistency or lack thereof in the account being given, interest in the outcome and other relevant considerations
( Gass v. Gass, 42 AD3d 393, 401 [1st Dept 2007] ). Indeed, when findings of fact rest in large measure on considerations related to the credibility of witnesses, a trial court's determination on this issue is to be accorded great deference ( Ning Xiang Liu v. Al Ming Chen , 133 AD3d 644, 644 [2d Dept 2015] ). Absent conclusions that cannot be supported by any fair interpretation of the evidence, a judgment rendered after a bench trial should not be disturbed ( Saperstein v. Lewenberg , 11 AD3d 289, 289 [1st Dept 2004] ).
Notably, in a Small Claims case, the court is bound by § 1804 of the New York City Civil Court Act, which states, in relevant part, that
[t]he court shall conduct hearings upon small claims in such manner as to do substantial justice between the parties according to the rules of substantive law and shall not be bound by statutory provisions or rules of practice, procedure, pleading or evidence, except statutory provisions relating to privileged communications and personal transactions or communications with a decedent or mentally ill person.
Thus, wide latitude must be given to all litigants before the Small Claims Court, which must dispense with the strictures and exactness applicable in other tribunals.
A civil assault is an intentional placing of another person in fear of imminent harmful or offensive contact; civil battery is an intentional wrongful physical contact with another person without consent
( Charkhy v. Altman , 252 AD2d 413, 414 [1st Dept 1998] ). Thus, the elements of civil battery are bodily contact, made with intent, and which is offensive in nature ( Cerilli v. Kezis , 16 AD3d 363, 364 [2d Dept 2005] ; Siegell v. Herricks Union Free School Dist. , 7 AD3d 607, 609 [2d Dept 2004] ; Tillman v. Nordon , 4 AD3d 467, 468 [2d Dept 2004] ). Notably, the intent required for battery is merely one to cause bodily contact that a reasonable person would find offensive and not that the contact be intended to cause harm (Cerilli at 364; see Jeffreys v. Griffin , 1 NY3d 34, 41, n2 [2003] ["The intent required for battery is intent to cause a bodily contact that a reasonable person would find offensive. An offensive bodily contact is one that is done for the purpose of harming another or one that offends a reasonable sense of personal dignity, or one that is otherwise wrongful." (internal quotation marks omitted) ]; Masters v. Becker , 22 AD2d 118, 119-20 [2d Dept 1964] ["The correct rule as to intent is set forth in the American Law Institute's Restatement of the Law, namely: that intent is established if an act is done with the intention of inflicting upon another an offensive but not a harmful bodily contact or of putting another in apprehension of either a harmful or offensive bodily contact, and such act causes a bodily contact to the other although the act was not done with the intention of bringing about the resulting bodily harm." (internal citations and quotation marks omitted) ] ).
It is well settled that a plaintiff in a Small Claims action can recover damages for personal injuries sustained which cause pain and suffering ( Buonomo v. Stalker , 40 AD2d 733, 733 [3d Dept 1972] ["In action in name of respondent against infant and his father to recover for medical bills and injuries sustained by respondent's infant son when he was struck on nose by infant defendant, respondent is entitled to recover her medical bills while her son is entitled to award for his conscious pain and suffering."]; Primiani v. Lucido , 44 Misc 3d 142[A], *1 [App Term 2014] [Appellate Term affirmed "small claims action to recover the sum of $ 5,000 for personal injuries he sustained as a result of defendant having punched him in the face, causing injury to plaintiff's eyes and resulting in plaintiff receiving 22 stitches at a hospital."]; Stines v. Weeks , 35 Misc 3d 131[A], * 1 [App Term 2012] [Appellate Term reversed trial court's decision dismissing small claims action brought by plaintiff "to recover for personal injuries he had allegedly received as a result of being assaulted by defendant; defendant counterclaimed, claiming that plaintiff had injured him, and that, as a result, he had lost time from work."] ).
With respect to damages for personal injuries causing conscious pain and suffering, they are generally not recoverable unless medically corroborated ( Dowling v. Dowling , 138 AD2d 345, 345 [2d Dept 1988] ["Moreover, the court properly exercised its discretion in temporally limiting the plaintiff's recovery for conscious pain and suffering to that period for which corroboration by a certified medical record existed, in the absence of expert medical testimony with respect thereto."] ). An exception, however, are injuries alleged which are not outside the knowledge and experience of the average person, in which case, lay testimony is sufficient to warrant damages ( Shaw v. Tague , 257 NY 193, 195-96 [1931] ["In many cases jurors might find it difficult, without the aid of medical evidence, to connect conditions complained of with an accident but the results may be of such a character as to enable them to draw their conclusions from their own knowledge or experience. Thus, if a plaintiff testified that after he was struck in the eye he had what is vulgarly known as a black eye, it would be unnecessary to produce an expert witness to say that an extravasation of blood resulting in ecchymosis might follow such a blow. On the other hand, remote and unusual effects of physical *196 injuries, such as cancer or tuberculosis, would call for more than a layman's knowledge of cause and effect." (iternal citations omitted) ]; Love v. Rockwell's Intern. Enterprises, LLC , 83 AD3d 914, 916 [2d Dept 2011] ["We reject the appellant's argument that expert medical evidence was necessary to prove that the battery caused the plaintiff's broken jaw. Under the circumstances of this case, the results of the alleged assault and battery are within the experience and observation of an ordinary layperson." (internal quotation marks omited) ] ).
Generally, a plaintiff has the burden of establishing damages for past and future lost earnings with reasonable certainty ( Gore v. Cardany , 167 AD3d 851, 852 [2d Dept 2018] ; Lodato v. Greyhawk N. Am., LLC , 39 AD3d 494, 495 [2d Dept 2007] ). Thus, to meet the foregoing burden, plaintiff is required to proffer tax returns, W—2 forms, or pay stubs (Lodato at 495; Sdregas v. City of New York , 309 AD2d 612, 613 [1st Dept 2003] ).
After considering all the evidence at trial, the Court finds that plaintiff credibly established that she was battered by Mintah while he was employed by Family Dollar, such that Family Dollar is vicariously liable for Mintah's actions . Moreover, the Court finds that plaintiff believably established that plaintiff sustained physical injuries causing her pain and suffering and that she lost time from work as a result of the foregoing battery.
Here, because Family Dollar never produced any evidence that Mintah was not employed by it during the alleged battery or that he was, in fact working and discharging his duties at the time of the alleged battery, Family Dollar is vicariously liable for Mintah's tortious conduct. (Fenster v. Ellis , 71 AD3d 1079, 1080 [2d Dept 2010] ["The doctrine of respondeat superior renders a master vicariously liable for a tort committed by his servant while acting within the scope of employment."]; Quadrozzi v. Norcem, Inc. , 125 AD2d 559, 561 [2d Dept 1986] ["The doctrine of respondeat superior renders a master vicariously liable for a tort committed by his servant while acting within the scope of employment. Intentional torts as well as negligent acts may fall within the scope of employment. In either situation, the employer need not have foreseen the precise act or the exact manner of injury so long as the general type of conduct may have been reasonably expected, i.e. general forseeability exists." (internal citations omitted) ] ). Any argument that the battery here was not within the scope of Mintah's employment is unavailing since it was never asserted. Moreover at best, here Mintah was doing his job for Family Dollar and discharged it improperly, which is no defense (Riviello v. Waldron , 47 NY2d 297, 302 [1979] ["So no longer is an employer necessarily excused merely because his employees, acting in furtherance of his interests, exhibit human failings and perform negligently or otherwise than in an authorized manner. Instead, the test has come to be whether the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions." (internal quotation marks omitted) ] ).
Plaintiff and Preston testified that while plaintiff attempted to use an empty unattended cart within Family Dollar, Mintah approached her and prevented her from using the same. Then after plaintiff insisted on using the cart, Mintah intentionally grabbed her, threatened her and when plaintiff broke free and grabbed the cart, intentionally attempted to pry her hands from the same. Clearly, under these facts, the elements of civil battery - bodily contact, made with intent, and which is offensive in nature (Cerilli at 364; Siegell at 609; Tillman at 468) - are extant and the Court finds that Mintah battered plaintiff.
Plaintiff further credibly established that as a result of the foregoing, she sustained a shoulder injury and cuts to her hand, causing her pain, which required her to obtain medical treatment at Montefiore Hospital. Thus, plaintiff established that she sustained injuries, causing her pain, suffering, and for which she can recover in this Small Claims action. To be sure, a plaintiff in a Small Claims action can recover damages for personal injuries sustained which cause pain and suffering (Buonomo at 733; Primiani at *1; Stines at * 1) and such damages can be established absent medical corroboration, where as here, they are an obvious consequence of a battery (Shaw at 195-96). Nevertheless, here, plaintiff actually corroborated her claim of physical injury by tendering corroborative documentary medical evidence - the document evincing treatment at Montefiore Medical Center - which memorialized her injuries and that she was treated for the same. Because the evidence of injury was on the same day of the instant battery there is no temporal attenuation between the tort alleged and the injuries sustained. Accordingly, with respect to the instant injuries and the pain that they caused, the Court finds that plaintiff is entitled to $ 5,000 in damages.
Lastly, plaintiff credibly established that as a result of the instant battery, she lost time from work. Indeed, to recover for lost wages, a plaintiff must establish damages for past and future lost earnings with reasonable certainty (Gore at 852; Lodato at 495), and such burden is generally met with tax returns, W—2 forms, or pay stubs (Lodato at 495; Sdregas at 613). Here, plaintiff testified that subsequent to the instant accident, while employed at Best Health, earning $ 13 an hour and working eight hours per day, she missed four days of work. She also testified that while employed at CVS, earning $ 15.50 per hour and working four hours per day, as a result of the arrest and ACS investigation, she missed five days of work. Accordingly plaintiff establishes entitlement to damages for lost wages in the amount of $ 416 for the work she missed while employed at Best Health and $ 310 for the work she missed while employed at CVS. Thus, plaintiff is entitled to $ 726 in damages for lost wages.
Significantly, the Court found Hernandez rather incredible and found it telling that neither he nor Family Dollar produced the surveillance footage of the instant incident at trial. It is hereby
ORDERED that the Clerk enter judgment in plaintiff's favor and against all defendants for $ 5,000 , without cost or interest. It is further
Although plaintiff demonstrated entitlement to a judgment in the amount of $ 5,726, pursuant to the New York City Civil Court Act § 1801, this Court's monetary jurisdiction is limited to $ 5,000.
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ORDERED that plaintiff serve a copy of this Decision and Order with Notice of Entry upon defendant within thirty (30) days hereof.
This constitutes this Court's decision and Order.