It was within the province of the jury to disbelieve the defense testimony that there were scratches on the face of plaintiff's husband severe enough to warrant the arrest of plaintiff for assault in the third degree ( see, Malte v. State of New York, 125 A.D.2d 958, 959-960, lv denied 69 N.Y.2d 607). In light of defendants' burden of proving probable cause, the jury verdict for plaintiff on the false arrest claim therefore had a rational basis ( see, Woodard v. City of Albany, 81 A.D.2d 947).
Plaintiff's husband cannot be said to have been under plaintiff's control, given the pattern of extreme domestic violence that continued, according to plaintiff, up to the time of trial on her tort claims. Thus, the trial court properly denied defendants' request for a missing witness charge.
We have considered defendants' remaining arguments and find them to be without merit.
Concur — Sullivan, J.P., Milonas, Ellerin, Nardelli and Williams, JJ.