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Moorhouse v Standard, New York
2013 NY Slip Op 30131(U)
January 17, 2013
Supreme Court, New York County
Docket Number: 112956/10
Judge: Joan M. Kenney
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
Index Number 112956/2010
STANDARD NEW YORK
SEQUENCE NUMBER : 008
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L?3ywere read on this motion tom$;
The following papers, numbered I to
Notice of MotlonlOrder to Show Cause -Affidavits
Upon the foregoing papers, It I ordered that this motlon I
IN W .
MOTION IS DECIDEQ IN ACCORDANCE
MHTH THE ATTACHED ~
JAN 25 2013
COUNTY CLEHK‘S OFFICE
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: I A S PART 8
DECISION 6r ORDER
Index No. 112956/10
THE STANDARD, NEW YORK, ANDRE BALAZS
PROPERTIES, GUIYAN PENG a/k/a ANNA PENG,
and KIMBERLY RUSSEL,
JOAN M. KENNEY, J . S . C . :
Motion sequence nos,
JAN 25 2013
_ - - - - - I - - - - - - - - _
and 009 are consolida(&@~6XE~~s
In motion seq. no. 008, defendants The Standard New York
(Standard), Andre Balazs Properties (Properties) and Kimberly
summary judgment dismissing the complaint against them.
In motion sequence no. 009, defendant Guiyan Peng a/k/a Anna
Peng similarly moves to dismiss the complaint as against her.
Standard and Properties are alleged to own and operate certain
hotels and residences in New York City, including The Standard
(Hotel). At all relevant times, Peng was a housekeeper employed at
Hotel, and Russell was Peng's immediate supervisor.
Plaintiff cross-moves, pursuant to CPLR 305 (c), for leave to
amend the complaint by adding Hotels AB Gansevoort Employees, LLc
as a defendant in this action, and to have this court take judicial
notice of the "not guiltyt1
verdict rendered by the j u r y in People
v Moorhouse, indictment no. 5682/09, Sup Ct, NY County.
This case arises from the arrest, indictment, trial, and
acquittal of plaintiff, who was charged in the above-referenced
action with the attempted rape of Peng, and with four related
charges of sexual abuse, The complaint, which is not a model of
drafting, purports to allege the following six causes of action:
(1) defamation; ( 2 ) intentional infliction of emotional distress;
(3) false imprisonment; (4) malicious prosecution; ( 5 ) respondeat
superior; and (6) conversion.
At the outset, the court notes that plaintiff's theory of his
case, as presented in his complaint and in his memorandum of law in
opposition to defendants' motions for summary judgment, is that
Hotel personnel falsely accused him of attempting to rape Peng, and
had him arrested, in order to cover up a theft, or an attempted
theft of plaintiff's property, by Peng. That theory is undercut by
plaintiff's acknowledgment that, prior to testifying at his
criminal trial, he did not tell anyone working for Hotel, or the
police officers who arrested him on the premises of Hotel, that
Peng had stolen, o r had tried to steal, anything from him.
In addition, plaintiff contends that Hotel personnel must have
orchestrated his arrest, because Peng does not speak English, and
because she testified at her deposition that she told Hotel
personnel only that plaintiff was l'crazy,l1 and that he had pushed
her. However, Paolo Moratin, Director of Housekeeping at Hotel,
testified at plaintiff's trial that, as soon as Peng told him that
Moorhouse had touched her, he told her to stop speaking and took
her to the Hotel's security office, where, at first, she said only
that plaintiff had pushed her onto t h e bed and had kissed her neck.
He further testified that two police officers arrived within 15
minutes, and that, when they questioned Pencj, she told them that
plaintiff had tried to remove her stockings and had touched her
vagina with his hand.
Police officer Frank Bellotti, one of t h e
two officers who had come to Hotel, testified that Peng told him
that plaintiff was holding her down on the bed and touching her
vagina with his hand. Officer Bellotti testified that Peng was
speaking to him i n English, but that she didn't say the word
"vagina,'Ipointing, instead. Accordingly, plaintiff's supposition
that Hotel personnel, other than Peng, caused him to be arrested,
The court now turns to the specific causes of action alleged
in the complaint. The first cause of action states that:
Plaintiff's injuries occurred due to the false and
defamatory statements made by [an unspecified] defendant,
unprivileged communication to a third party, recklessness
on her part in knowing the falsity of the statement, and
caused special harm to the plaintiff as a result of the
communication[.] His injuries were directly and
proximately caused by defendants [sic] conduct.
Defendants, and each of them, in sum and substance,
[stated] that Plaintiff had I r p d l defendant Peng, that
he "frightened and shocked" defendant Peng, that
Moorhouse "attackedll defendant Peng and "threw himself
and other statements and accusations which were false
when made, known to be false and made maliciously.
CPLR 3016 (a) requires a complaint alleging defamation to set
forth the specific words complained of.
complained of is insufficient.
paraphrase of the words
Mafias v VMS A S S O C . , LLC, 53 AD3d
Here, the complaint expressly acknowledges that the words
in quotation marks are a paraphrase.
claim of slander must also
provide the dates, times, and places where the words complained of
were said, and identify the persons to whom they were said. BDCM
Fund Adviser, L.L.C.
v Zenni, 98 AD3d 915 (1st Dept 2012) ; Dillon
C i t y of N e w York, 261 A ~ 2 d
Dept 1999). The complaint
fails to allege any of that information, and plaintiff's two
responses to defendants' demand for particulars fail to remedy that
defect. Accordingly, the first cause of action must be dismissed.
The second cause of action, which is labeled ltIntentional
Infliction of Emotional Distress,Il alleges not a single fact to
support such a claim. Instead, it alleges that:
A t all relevant times herein, it was the duty of the
Standard defendants to supervise and entrust the use,
control, and operation of their said hotel cleaning staff
to suitable, competent, qualified, trained, diligent and
adequate persons. It was further their duty to properly
and adequately supervise and ensure that their said
cleaning staff was not entrusted to persons who
constituted a potential menace, hazard or danger to the
public or Plaintiff, those with unsuitable propensities
and those with emotional, physical, psychological and/or
physiological traits or characteristics unsuitable or
contraindicated to safely operate such a staff.
The Standard defendants were negligent in their
entrustment of the aforesaid j o b to Peng. It was their
duty to ensure the safety and satisfaction of their
guests, and ensure that their staff was well qualified to
perform their duties, which they failed.
The necessary basis for a claim of negligent supervision, or
negligent hiring, is that the employee who is claimed to.have been
negligently supervised, or hired, have committed a tort for which
the plaintiff seeks to hold the employer liable.
Rodriguez v U n i t e d Transp. Co. , 246 AD2d 178 (1st Dept 1998).
Accordingly, the court turns to the remaining torts alleged against
Peng, to wit, malicious prosecution and false imprisonment.
plaintiff claiming malicious prosecution must show, among
other things, that the defendant took an active part in t h e
plaintiff's arrest, beyond merely making a complaint, or giving the
officer information. Narvaez v City of New York, 83 AD3d 516 (1st
Dept 2011); Mesiti v Wegman, 307 AD2d 3 3 9 (2d Dept 2003). Here,
Officer Bellotti states in his affidavit that he and the other
officer decided to make the arrest after speaking with Peng and
observing her demeanor, and on the basis of subsequently speaking
with and observing plaintiff. Officer Bellotti also states that
neither Peng, nor any other Hotel employee, directed or demanded
that plaintiff be arrested, or in any way participated in that
Moreover, a claim of malicious prosecution requires a showing
that the criminal proceeding in question has been brought without
probable cause. C a n t a l i n o v Danner, 96 NY2d 391 (2001); Norment v
Interfaith Ctr. of N . Y., 98 AD3d 955 (2d Dept 2012) .
Here, a grand
jury indicted plaintiff on all the charges on which he was tried.
There is, accordingly, a presumption, here unrebutted, that there
was probable cause for plaintiff's arrest. Narvaez v C i t y of N e w
AD3d at 517.
private person who provides information to the police, who
are then free to exercise their own judgment as to whether to make
an arrest, will not be held liable for false imprisonment.
Petrychenko v Solovey, 99 AD3d 777 (2d Dept 2012); Oszustowicz v
Admiral Ins. Brokerage Corp. , 49 AD3d 515 (2d Dept 2008).
discussed above, neither Peng, nor any other Hotel employee,
directed or demanded that plaintiff be arrested, or in any way
participated in that arrest. Accordingly, the third and fourth
consequently, the second cause of action must be dismissed, as
against the other defendants.
The fifth cause of action alleges both that Standard and
Properties were negligent in hiring Peng and Russell, and that they
are vicariously liable for Peng's and Russell's tortious acts.
discussed above, plaintiff has no viable tort claim against Peng.
As f o r Russell,
the complaint makes no statement connecting her to
any alleged tort, other than the conclusory statement that Peng
defamed plaintiff "under permission and consent of Russel[ll . . . ,
express or implied."
Nor has plaintiff submitted even a shred of
evidence that Russell has committed a tort. Accordingly, the fifth
cause of action is also dismissed.
Plaintiff's claim of conversion is alleged solely against
Hotel and Properties, and is based upon plaintiff's deposition
testimony that, when he was released from jail, prior to his trial,
Hotel personnel returned to him some, but not all of the property
that he had had in his room at the time of his arrest.
possession of property is originally lawful, conversion
occurs when defendant refuses to return property a f t e r demand or
sooner disposes of the property." In the Matter of James White v
C i t y of Mount Vernon, 221 AD2d 345 92nd Dept, 1995).
Here it is undisputed that when plaintiff was arrested, Hotel
staff removed all of plaintiff's property from his room and placed
it elsewhere f o r safekeeping. Plaintiff does not contend that
Hotel acted improperly in taking that action. N o r does plaintiff
dispute the fact that his items were lawfully within the Hotel's
possession. Consequently, plaintiff's claim of conversion, based
upon his claim that some of his property was not returned to him,
could accrue only after a demand for that property and a failure on
the part of Hotel to return it. T e e V e e Tunes, Inc. v P r u d e n t i a l
Sec. C r e d i t Corp., L.L.C., 8
AD3d 134 (1st Dept 2004). Neither in
his complaint, nor in his deposition testimony, does plaintiff
state that he made a demand for the property that he contends was
missing. Accordingly, the sixth cause of action, is dismissed.
That branch of plaintiff's cross motion which seeks to add a
party defendant based upon plaintiff's recent discovery that the
proposed party defendant, Hotels RB Ganesvoort Employees, LLC,
rather than Hotel or Properties, employed Peng, is denied, as moot
inasmuch as all of plaintiff's claims herein are being dismissed.
That branch of the cross motion which seeks to have this court take
judicial notice that a jury found plaintiff ' o
guilty" in a
criminal trial, is also being denied. It is noted, however, that
the fact that plaintiff was found not guilty of the crimes with
which he had been charged is not proof that the information that
Peng gave the police was false.
on criminal charges
does not prove that a defendant is innocent; it merely proves the
existence of a reasonable doubt as to his gui1t.I' U n i t e d
Assortment of 8 9 F i r e a r m s , 4 6 5 US 354, 361 (1984).
Accordingly, it is hereby
defendants The Standard New York, Andre Balazs
Properties, and Kimberly Russell s/h/a Kimberly Russel's motion to
dismiss, is granted and the Clerk of t h e Court shall enter judgment
in favor of The Standard New York, Andre Balazs Properties, and
Kimberly Russell s/h/a Kimberly Russel and against plaintiff,
dismissing the complaint against them; and it is further
that defendant Guiyan Peng a/k/a Anna Peng's motion to
dismiss, is granted and the Clerk of the Court shall enter judgment
in favor of defendant Guiyan Peng a/k/a Anna Peng and against
plaintiff, dismissing t h e complaint against her; and it is further
that plaintiff's cross motion f o r leave to amend the
complaint to add party defendant (s) to this action and f o r judicial
notice regarding a ' o guilty" verdict in a criminal court matter,
is denied, as moot, since the matter is now dismissed as against
all named defendants herein.
Dated: January 17, 2013