Lawn v Gigliotti

[*1] Lawn v Gigliotti 2006 NY Slip Op 51379(U) [12 Misc 3d 1182(A)] Decided on May 30, 2006 Supreme Court, Suffolk County Jones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 30, 2006
Supreme Court, Suffolk County

MILDRED LAWN, Plaintiff,

against

JENNIFER GIGLIOTTI, Defendant.



003488/2004



BERNARD A. NATHAN, PC

By: Bernard A. Nathan, Esq.

Atty. for Plaintiff

325 Wireless Boulevard

Hauppauge, NY 11788

JENNIFER GIGLIOTTI

Defendant Pro Se

7 Bartlett Commons

Yaphank, NY 11980

John J.J. Jones, J.

ORDERED that this motion by plaintiff, Mildred Lawn, for an order granting summary judgment on the fourth cause of action in the complaint and other relief against defendant, Jennifer Gigliotti, is denied and, since plaintiff's motion for summary judgment searches the record, the granting of summary judgment in favor of the defendant dismissing the fourth cause of action in the complaint is appropriate (see CPLR 3212 [b]); and it is further [*2]

ORDERED that counsel for the plaintiff and the pro se defendant shall appear before this Court for a compliance conference on June 21, 2006 at 10 AM, at which time all discovery shall have been completed and this action shall be certified as ready for trial.

The undisputed evidence before this Court demonstrates that a misdemeanor information charging plaintiff Lawn with Criminal Contempt in the Second Degree was issued on December 11, 2003 by police officers based on the sworn deposition of "Gigliotti, Anthony." Lawn was charged therein with having "engaged in intentional disobedience [sic] or resistance to the lawful process or other mandate of a court; in that, the defendant did state to Anthony Gigliotti, 4th, stop playing with those sticks, they're for plowing' all in violation of an order of protection docket number 0-31380-03 issued on June 20, 2003 by the Honorable District Court Judge Lozito, ordering the defendant/respondent to refrain from communication with Anthony Gigliotti . . ." While the defendant Gigliotti testified at her deposition that she signed a "four part form" at the request of the police, she also testified that it was her husband, Anthony Gigliotti, who called the police on the day of the incident. Subsequent to their arrival at the scene, Lawn was taken into custody. Plaintiff Lawn now moves for summary judgment in her favor on the fourth cause of action in the complaint, under which she seeks damages for false arrest and false imprisonment arising out of the incident.

A civilian complainant will generally not be liable for false arrest/false imprisonment merely for seeking the assistance of or furnishing information to law enforcement authorities, who are then free to exercise their own judgment concerning whether an arrest should be made and criminal charges filed (Lowmack v Eckerd Corp., 303 AD2d 998, 757 NYS2d 406 [4th Dept 2003], citing Chapo v Premier Liq. Corp., 259 AD2d 1050, 1051, 688 NYS2d 342 [1999]; Cobb v Willis, 208 AD2d 1155, 1156, 617 NYS2d 601 [1994]). Furthermore, a civilian complainant cannot be liable for false arrest, false imprisonment, and malicious prosecution unless she affirmatively induced a police officer to act (Wasilewicz v Monroe Police Dep't, 3 AD3d 561, 771 NYS2d 170 [2d Dept 2004]). Since the evidence before this Court fails to support plaintiff's claims and, in fact, demonstrates that plaintiff can not sustain a cause of action for false arrest or false imprisonment against the defendant, the fourth cause of action in the complaint is hereby dismissed.

To the extent that plaintiff also seeks an order striking the defendant's answer for her alleged failure to appear for a compliance conference, such application is denied, as there has been no demonstration that a receipt for the mailed notice was returned by defendant, or that the pro se defendant actually received notice of the scheduled conference.

Counsel for the plaintiff shall serve a copy of this order with notice of entry upon [*3]the defendant and upon the Calendar Clerk of this Court at least ten (10) days prior to the conference date.

DATED:

HON. JOHN J.J. JONES, JR.

J.S.C.