Decided October 26, 2010

Acosta v City of New York, 72 AD3d 624, reversed.

APPEARANCES OF COUNSEL

Alexander J. Wulwick, New York City, for appellant.

Michael A. Cardozo, Corporation Counsel, New York City (Drake A. Colley of counsel), for respondents.

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to that court for consideration of issues raised but not determined on the appeal to that court. A valid line of reasoning exists based on the record evidence to support the jury verdict [*2]finding defendants liable for battery and false arrest (see generally Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). Thus, it was erroneous to set aside the verdict as a matter of law. On remittal, the Appellate Division must determine whether the jury's verdict is in accord with the weight of the evidence and, if so, whether the amount of damages awarded by the jury was excessive (see id. at 500 and n 4).

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Pigott and Jones concur in memorandum; Judge Smith dissents and votes to affirm for the reasons stated in the memorandum at the Appellate Division (72 AD3d 624 [2010]).

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.