Hui Min Li v City of New York

Hui Min Li v City of New York 2011 NY Slip Op 08469 Decided on November 22, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 22, 2011
Saxe, J.P., Sweeny, Richter, Manzanet-Daniels, JJ.
6115 105858/07

[*1]Hui Min Li, Plaintiff-Respondent,

v

The City of New York, et al., Defendants, Hong Kong Supermarket, Inc., Defendant-Appellant.




Conway, Farrell, Curtin & Kelly P.C., New York (Jonathan T.
Uejio of counsel), for appellant.
Law Office of Ryan S. Goldstein, P.L.L.C., Bronx (Ryan S.
Goldstein of counsel), for respondent.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered January 31, 2011, which, insofar as appealed from, denied defendant Hong Kong Supermarket, Inc.'s motion for summary judgment dismissing the complaint as against it, unanimously modified, on the law, to grant the motion as to the cause of action for violation of civil rights pursuant to 42 USC § 1983, and otherwise affirmed, without costs.

Defendant failed to demonstrate conclusively that plaintiff's cause of action for false imprisonment as against it is without merit (see Martinez v City of Schenectady, 97 NY2d 78, 85 [2001]). The conflicting testimony presents issues of fact whether plaintiff was detained or remained voluntarily in the store after defendant accused her of stealing rice cakes and, if she was detained, whether the detention was conducted in a reasonable manner (see General Business Law § 218).

To the extent plaintiff's cause of action for violation of civil rights pursuant to 42 USC § 1983 is asserted against this defendant, it should be dismissed because the record is bereft of any [*2]indication that defendant was acting under color of state law (see Rodriguez v City of New York, 87 AD3d 867 [2011]).

We have considered defendant's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 22, 2011

CLERK