Egbe v Ezuma

[*1] Egbe v Ezuma 2009 NY Slip Op 50885(U) [23 Misc 3d 1121(A)] Decided on March 27, 2009 Supreme Court, Kings County Saitta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 27, 2009
Supreme Court, Kings County

Emmanuel Egbe, Plaintiff,

against

C. Nathaniel Ezuma, Defendants,



43836/2007



Plaintiff Attorney-

Uwem Umah, Esq.

255 Livingston Street, 4th Floor

Brooklyn, New York 11217

(718) 360-0527

Defendant Attorney -

Andrew M. Cuomo, Attorney General of the State of New York

120 Broadway

New York, New York 10271

(212) 416-8556

Wayne P. Saitta, J.

Defendant, C. NATHNIEL EZUMA , (hereinafter " Defendant"), move this court for an Order pursuant to CPLR §3211(a)(1) and §3211(a)(7) dismissing the complaint and granting further relief as this Court deems just and proper.

Upon reading the Notice of Motion to Dismiss of Joanne Skolnick, Esq., Attorney for Defendant, C. NATHNIEL EZUMA, dated June 13th, 2008, together with the Declaration of Joanne Skolnick, dated June 13th, 2008, and all exhibits annexed thereto and the Memorandum of [*2]Law in Support of Defendant's Motion to Dismiss the Complaint of Joanne Skolnick, Esq., dated June 13th, 2008; the Notice of Cross Motion and Opposition to Defendant's Motion to Dismiss by Uwem Umoh, Esq., Attorney for Plaintiff, EMMANUEL EGBE, dated October 17th, 2008, together with Attorney's Affirmation in Opposition to Defendant's Motion to Dismiss and in Support of Plaintiff's Cross-Motion for Summary Judgment on Liability, dated October 16th, 2008, and all exhibits annexed thereto; the Reply Memorandum of Law in Further Support of Defendant's Motion to Dismiss the Complaint and in Opposition to Plaintiff's Cross Motion for Summary Judgment by Joanne Skolnick, Esq., dated November 28th, 2008; and after argument of counsel and due deliberation thereon, Defendant's Motion to Dismiss is granted and Plaintiff's motion for Summary Judgment is denied for the reasons set forth below.

FACTS

This action for damages arises from the arrest of Plaintiff on December 1st, 2004 by the New York Police Department (NYPD).

Defendant and Plaintiff were co-workers at Medgar Evers College. Professor Evelyn Maggio, (hereinafter "Maggio"), who was also a co-worker at Medgar Evers, contacted the NYPD alleging Plaintiff had been harassing her.

The police commenced an investigation and in the course of that investigation, Officer Michael McDermott contacted Defendant. Defendant cooperated with the officer and answered questions related to Maggio's allegations that Plaintiff had been harassing her.

Plaintiff alleges Defendant made false statements to the police which led to the Plaintiff's improper arrest. He also asserts causes of action for violation of civil rights under the state and federal constitutions, intentional infliction of emotional distress and negligence.

Maggio initiated a case for employment discrimination on September 6th, 2005, in U.S. District Court entitled Maggio v. City University of New York, et al, 05 CV 4211 (KAM) (ARR), (the federal suit), in which Plaintiff in this matter was named as a defendant.

ARGUMENTS

Defendant argues that the documentary record of the federal suit initiated by Maggio against Plaintiff offers a complete defense to Defendant in this matter. He argues that the documentary evidence conclusively establishes the Maggio, not Defendant, instigated the arrest and therefore the Plaintiff's claims must be dismissed.

Defendant further argues that Plaintiff fails to state a cause of action upon which relief can be granted as to the causes of action based on violations of the state and federal constitutions and negligence, and the cause of action alleging intentional infliction of emotional distress is time barred.

Plaintiff cross moves for summary judgment and argues that the documentary evidence shows Defendant wrongly instigated Plaintiff's arrest.

ANALYSISDefendant brings this motion to dismiss pursuant to §CPLR 3211(a)(1), based upon the documentary evidence, based upon judicial estoppel, and §CPLR 3211(a)(7) for failure to state a cause of action and such other and further relief as this Court finds just. [*3]

The Second Department recently stated in R.I. Island House, LLC v. North Town Phase II Houses, Inc., 51 AD3d 890, 858 NYS2d 372, (2nd 2008), that the standard required in order to dismiss a complaint pursuant to §CPLR 3211(a)(1), the moving party must demonstrate that "the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (citing Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d 314, 326, (2002); see also Shaya B. Pacific, LLC v. Wilson, Elser, Moskowitz, Edelman, 38 AD3d 34, (2nd Dept 2006).

Even assuming the facts Plaintiff alleges to be true, Defendant's corroborating statement made while cooperating with a police investigation, which led to Plaintiff's arrest, is not sufficient to support a "false imprisonment" claim against Defendant.

An action for false imprisonment involves the unlawful arrest, or seizure and detention of a person without a warrant. Lee v. Pearl Paint Co., Inc., 22 Misc 3d 1123(A), Slip Copy, 2009 WL 395475 (Table) N.Y.City Civ.Ct.,2009 citing Jacques v. Sears, Roebuck & Company, 202 NY2d 466, 285 NE2d 871, 334 NYS2d 632 (1972)

Where the claim of false imprisonment is made as the result of a police arrest, the plaintiff must demonstrate that a defendant did more than cooperate with a police investigation. "A civilian complainant, by merely seeking police assistance or furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution". (Du Chateau v. Metro-North Commuter R.R. Co., 253 AD2d 128, 131, 688 NYS2d 12; see Schiffren v. Kramer, 225 AD2d 757, 758-759, 640 NYS2d 175; Celnick v. Freitag, 242 AD2d 436, 437, 662 NYS2d 37).

Since the police made the actual arrest, in order to sustain a false imprisonment claim against a civilian complainant, it must be shown that the complainant "played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act". (Du Chateau v. Metro-North Commuter R.R. Co., supra at 131, 688 NYS2d 12) "The defendant must have affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his own volition" (59 NY Jur.2d, False Imprisonment and Malicious Prosecution § 37; see Eisenkraft v. Armstrong, 172 AD2d 484, 486, 567 NYS2d 840).

Here the police report demonstrates that Defendant was merely cooperating with the police by answering questions related to a complaint made by Maggio and the investigation which arose from her complaint.

Plaintiff furnishes no evidence tending to show that defendant "affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his own volition". (Mesiti v. Wegman, 307 AD2d 339, at 340).

In support of his position that Defendant is guilty of false imprisonment, Plaintiff attaches the police complaint form, the DA's Complaint Room Screening Sheet, the arresting officer's police report, the deposition of the arresting officer held in the federal lawsuit and the deposition of Plaintiff herein. [*4]

The police report reads, "the undersigned did contact Dr. Ezuma" and upon further inquiry regarding other complaints made about Egbe, Dr. Ezuma stated, "I want to help you and tell you the truth.. Dr. Egbe [sic] action [sic] were inappropriate with secretaries and Prof. Maggio." Dr. Ezuma then stated that Prof. Maggio's claims were accurate.

The police report in fact supports Defendant's contention that he did not instigate the arrest or imprisonment, that the statement was made in the course of an ongoing police investigation, and that his statement only corroborated the complainant's accusation.

The documentary evidence Defendant submits includes the "Complaint Room Screening Sheet" of the Kings County District Attorney's office, and pages of a police investigation report which was initiated on October 20th, 2004, out of the 71st precinct, Brooklyn.

These documents are not being considered for the truth of the allegations contained therein, but rather for the manner in which the investigation was conducted; specifically they are relevant for who initiated the police investigation and how Defendant became involved.

The District Attorney's screening sheet relates that the complainant, Evelyn Maggio, walked into the precinct and filed a report of stalking. The police report indicates that Detective McDermott contacted the Defendant. The remainder of the report relates the content of the officer's conversation with Defendant. At no point in either of these documents does it state that Defendant initiated any communication with the district attorney or the police or did anything more than cooperate with the police investigation. Plaintiff has submitted no evidence that Defendant played any role in encouraging Plaintiff's arrest.

In this case, the documentary evidence submitted by both Plaintiff and Defendant demonstrate that Plaintiff cannot support the cause of action against Defendant for false imprisonment.

Although not specifically pled in his complaint, Plaintiff makes conclusory allegations in his moving papers that Defendant conspired with Maggio to have Plaintiff arrested.

In Plaintiff's Affirmation in Opposition, he argues that "defendants [sic] gave information to the police in furtherance of a conspiracy to confine plaintiff", and that "Ezuma and Maggio conspired to have plaintiff falsely arrested by conspiring with Maggio to give the police false information".

Plaintiff fails to allege any facts that support the theory that Ezuma and Maggio conspired against Plaintiff.

By arguing that "Ezuma provided the information that the police relied on in arresting plaintiff", Plaintiff merely states that Ezuma cooperated with the police. The testimony of the arresting officer and the content of the police report reveals that Maggio alone initiated the investigation.

Plaintiff fails to assert facts that support a claim that Defendant is guilty

of false imprisonment.

Plaintiff's other causes of action are also defective. Plaintiff fails to make out a cause of action for the violations of his civil rights under 42 U.S.C. §1983 as he fails to plead or assert that Defendant is a state actor or acted under color of law. The only state actors identified in the complaint are unnamed New York City Police Officers who are not parties in the action. The failure to show that Defendant is a state actor is fatal to this claim. Velaire v. City of [*5]Schenectady, 235 AD2d 647, (3rd Dept 1997).

Plaintiff's second cause of action under the New York State constitution refers to"Pamela Harris and Lamont Harris" who are not parties to this case. It seems apparent that this cause of action, which does not relate to Plaintiff was included in error, should be dismissed.

Plaintiff's third and fourth causes of action sound in intentional tort are time barred. The time in which to file a claim for false imprisonment runs for one year from the date of release from confinement which, in this case, was December 1, 2004. The time in which to file a claim for intentional infliction of emotional distress is also one year. This claim would accrue at the time the Plaintiff was arrested. The complaint in this case was filed on November 27th, 2007 and therefore the claims for intentional tort are therefore untimely.

Finally, Plaintiff asserts as a fifth cause of action a claim for negligence but neither identifies the duty Defendant owed Plaintiff, nor any breach of a duty. The pleadings do not contain factual allegations to support a claim for negligence.

WHEREFORE, by reason of the foregoing, Defendant's Motion to Dismiss the complaint is herein granted and Plaintiff's Cross Motion for Summary Judgment is herein denied.

This constitutes the decision and order of the Court.

E N T E R,

______________________________

J.S.C.