Lee v Pearl Paint Co., Inc.
Annotate this CaseDecided on February 18, 2009
Civil Court of the City of New York, New York County
Michael Lee, Plaintiff(s)/, Petitioner(s),
against
Pearl Paint Company, Inc., Defendant(s)/, Respondent(s).
300520 TSN 2007
Attorneys for Defendant/Third Party Plaintiff:
Lewis, Brisbois, Besgaard & Smith, L.L.P.,
Attorneys for Plaintiff:
Gentile & Associates
Attorneys for Third Party Defendant:
City of New York
Pamela Horan, Esq.
Manuel J. Mendez, J.
Defendant/Third Party Plaintiff, Pearl Paint Company Inc., (hereinafter referred to as movant)
seeks an Order dismissing the plaintiff's complaint against it and granting summary judgment
pursuant to CPLR § 3212. This case arises out of the plaintiff detention by security guards
and the police at the movant's store on February 8, 2005. The movant is seeking summary
judgment based on plaintiff's claims of false arrest, abuse of process, prima facie tort, negligent
and intentional infliction of emotional harm. Movant claims plaintiff also incorporates into the
complaint, negligent hiring, retention and supervision, as well as assault and battery, with
deprivation of civil rights, but these claims are included as part of the other claims. Movant
argues that plaintiff's claims for false arrest have no merit, are not supported by the facts and
there is a complete defense provided by General Business Law §218. Movant also argues
that all of the plaintiff's other claims are either misapplied, unfounded or without merit.
Plaintiff opposes the motion arguing that the contradictory testimony provided in the
deposition transcripts of plaintiff and Joseph Pinlac, an assistant manager of the movant, as well
as the affidavit of Nola Grant a security guard raises issues of fact and the motion should be
denied. Plaintiff also claims the arrest was not privileged pursuant to General Business Law
§218 and the movant did not establish it had reasonable grounds for the detention or that it
was for a reasonable time and in a reasonable manner. As to the claim of abuse of process, the
plaintiff claims the movant's security guards intentionally perverted the process of arrest in the
search for the item alleged to be stolen even after it was found not to be in his possession.
Plaintiff seeks alternative remedy pursuant to prima facie tort and argues that it may be plead
simultaneously with a traditional tort. The plaintiff claims there are no special damages but he is
entitled to collect on his medical expenses paid by medicaid.
LEGAL ANALYSIS
In order to prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact. Klein v. City of New York, 89 NY2d 833, 834-35 [1996]; Ayotte v. Gervasio, 81 NY2d 1062, 1062 [1993], Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986], Winegrad v. New York University Medical Center, 64 NY2d 851, 487 NYS2d 316 [1985], Zuckerman v. City of New York, 49 NY2d 557, 427NYS2d 595 [1980]. Once the moving party has satisfied these standards, the burden shifts to the opponent to rebut that prima facie showing, by producing contrary evidence, in admissible form, sufficient to require a trial of material factual issues. Kaufman v Silver, [*2]90 NY2d 204, 208 [*1997]; Amatulli v Delhi Constr. Corp., 77 NY2d 525, 533-34 [1999]; Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 427 [1988]. In determining the motion, the court must construe the evidence in the light most favorable to the non-moving party. SSBS Realty Corp.v. Public Service Mut. Ins. Co., 253 AD2d 583, 584-85 [1st Dept. 1998]; Martin v. Briggs, 235 AD2d 192, 196 [1st Dept. 1997].
False arrest has been deemed "largely synonymous with false imprisonment." An action for false imprisonment involves the unlawful arrest, or seizure and detention of a person without a warrant. Jacques v. Sears, Roebuck & Company, 202 NY2d 466, 285 NE2d 871, 334 NYS2d 632 (1972). A private arrest is generally invalid unless the person detained "has in fact committed the crime," however, an exception is made for merchants pursuant to General Business Law §218. To the extent the detention of an individual suspected of shoplifting by a merchant was based upon reasonable cause, there is a defense to a civil claim. Jacques v. Sears, Roebuck & Company, 202 NY2d 466, supra .
The movant pursuant to General Business Law §218, is required to demonstrate that the detention was made in a "reasonable manner" for a "reasonable period of time, " to permit investigation or questioning by the police. The plaintiff must show the movant did more than cause a police officer to confine the plaintiff; tort liability does not arise by identifying an individual as a perpetrator of a crime. Merely seeking assistance or providing information regarding a suspicion to the police who are then free to make their own judgment as to whether an arrest is needed, does not result in liability imposed on the defendant. Du Chateau v. Metro North Commuter Railroad Company, 252 AD2d 128, 688 NYS2d 12 [N.Y.A.D. 1st Dept. 1999] quoting from Vernes v. Phillips, 266 NY 298, 194 N.E. 76 (1935), Berrios v. Our Lady of Mercy Medical Center, 20 AD3d 361, 799 NYS2d 452 [N.Y.A.D 1st Dept. 2005] and Kwawukume v. JP Morgan Chase Bank, 13 Misc 3d 1242(A),831 NYS2d 360 [Civ. Ct. NY City, 2006]. An issue of fact may exist regarding testimony as to the reasonableness of the detention and the time or manner in which it was conducted such that it may not be resolved by a motion for summary judgment. Muza v Niketown New York, 278 AD2d 13, 717 NYS2d 142 [N.Y.A.D. 1st Dept. 2000] and Allen v. Ellen Tracy Outlet Store, 12 Misc 3d 126(A), 824 NYS2d 752 [Sup. Ct. App. Term, 1st Dept. 2006].
In support of the motion papers the defendant has provided a copy of the deposition testimony of Josef Pinlac, assistant manager of the first floor department of Pearl Paint.[FN1] The affidavit of Nola Grant, one of the security guards involved in the incident is also annexed to the motion papers as "Exhibit J." Josef Pinlac remembered observing the plaintiff being stopped at the front entrance of the store, and that he was screaming. Mr. Pinlac indicated [*3]the plaintiff was advised by the security guards that if he refused to cooperate the police would be called and the response from plaintiff was, "Go ahead and call the police."[FN2] Mr. Pinlac also testified that the plaintiff was uncooperative and became physical when approached and touched by a police officer, and that was when the police appeared to make the decision to handcuff him.[FN3] The affidavit of Nola Grant, indicates that plaintiff was uncooperative when confronted regarding taking merchandise. Nola Grant also indicates that another security guard Alfredo Reyes got the police from outside the store. The plaintiff opened the bag for the police and an envelope was found, but the plaintiff insisted it was his property. The plaintiff was handcuffed by the police, pursuant to the affidavit of Nola Grant, because he refused to cooperate and was physical with them, she did not direct them to restrain or release him.[FN4]
The plaintiff's deposition transcript is also annexed to the motion papers, he indicates that he offered his shopping bag to Nola Grant when confronted and told her that he had purchased the merchandise in his possession, that he had a receipt. The plaintiff also indicated that Nola Grant did not believe him and insisted on searching his knapsack. The police were brought to the store by Nola Grant according to the plaintiff's deposition and he did not yell at them or become physical but they handcuffed him because they did not believe his statements. The plaintiff indicated that Nola Grant searched his knapsack in front of the police and didn't find anything and that she insisted he had taken an envelope. The plaintiff testified the police took him to another room after Nola Grant pointed it out to them, searched his pockets found nothing and released him.[FN5]
The contradictory testimony without further proof including statements by the police officers involved or a report of the incident, is sufficient to raise an issue of fact as to the basis for the detention and whether it was conducted in a reasonable manner.
Abuse of process requires that the individual that brought either the civil or criminal process be seeking to do harm without justification or excuse. The individual must be seeking to use the process to the detriment of another or for a collateral advantage that would be, "outside the legitimate ends of the process." Board of Education of Farmingdale Union [*4]Free School District v. Farmingdale Classroom Teachers Association, Inc. Local 1889, AFT AFL-CIO, 38 NY2d 397, 343 NE2d 278, 380 NYS2d 635 (1975). A claim of abuse of process requires a showing that actual process was involved and it was improperly used after being issued, a claim of malicious motive in bringing the action or process does not give rise to a cause of action. Curiano v. Suozzi, 63 NY2d 113, 469 NE2d 1324 (1984).
The plaintiff claims that the movant abused process by continuing the search for stolen merchandise after none was found, but no arrest was made and the plaintiff was released at the store. The plaintiff has not substantiated the basis for this cause of action. In addition, the plaintiff has claimed that the abuse of process was premised on the defendant's willful and malicious intent, which is not a basis for a cause of action for abuse of process.
A claim of prima facie tort requires "(1) intentional infliction of emotional harm,(2) causing special damages, (3) without excuse or justification, (4) by an act or series of acts that would otherwise be lawful." Curiano v. Suozzi, 63 NY2d 113, supra , citing to Burns Jackson Miller Summit & Spitzer v. Lindner, 59 NY2d 314 and ATI v. Ruder & Finn, 42 NY2d 454. Although prima facie tort can be pled in the alternative, it should not become a "catch all alternative" for other causes of action which are not sufficient on their own. Curiano v. Suozzi, 63 NY2d 113, supra .
In this action, the plaintiff concedes that there are no special damages, the cause of action for prima facie tort has been insufficiently stated and it should be dismissed.
The basis for the tort of intentional or negligent infliction of emotional distress requires conduct that is so extreme and outrageous, "it transcends the bounds of human decency as to be regarded as atrocious and intolerable in a civilized society." Freihofer v. Hearst Corp., 65 NY2d 135, 480 NE2d 349, 490 NYS2d 735 (1985). Absent proof a defendant intended to inflict harm upon the plaintiff or was not acting in good faith in causing an investigation, a cause of action for intentional or negligent infliction of emotional distress will not lie. Berrios v. Our Lady of Mercy Medical Center, 20 AD3d 361, supra , and Allen v. Ellen Tracy Outlet Store, 12 Misc 3d 126(A), supra .
The plaintiff has not provided sufficient proof that the security guards acting on movant's behalf did not act in a good faith and intentionally sought to inflict harm. The plaintiff has not provided a basis to sustain this cause of action.
The movant has failed to sufficiently meet its burden of proof as to plaintiff's claim of false arrest. There are issues of fact regarding the reasonableness of the detention, and the manner and duration of the detention. The movant has met its burden of proof as to the [*5]causes of action for abuse of process, prima facie tort as well as negligent and intentional infliction of emotional harm.
Accordingly, the motion by defendant/third party plaintiff, Pearl Paint Company Inc., for summary judgment is granted but only as to the causes of action for abuse of process, prima facie tort as well as negligent and intentional infliction of emotional harm. The cause of action for false arrest will remain.
The foregoing shall constitute the Decision and Order of the Court.
Dated: February 18, 2009
Manuel J. Mendez
Judge, Civil Court
Footnotes
Footnote 1:A copy of the deposition
transcript of Josef Pinlac is annexed to the motion papers as "Exhibit I. "
Footnote 2:See the deposition transcript of
Josef Pinlac, "Exhibit I" at page 36, lines 12-15. "
Footnote 3:See the deposition transcript of
Josef Pinlac, "Exhibit I" at pages 85-86. "
Footnote 4:See the Affidavit of Nola Grant
annexed to the motion papers as, "Exhibit J."
Footnote 5:See the deposition transcript of
Michael Lee annexed to the motion papers as "Exhibit H,"
pages 32-33, 39-42 and 46-50."
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