Sweeney v Bruckner Plaza Assoc. LP

[*1] Sweeney v Bruckner Plaza Assoc. LP 2004 NY Slip Op 51937(U) [21 Misc 3d 1129(A)] Decided on July 12, 2004 Supreme Court, Bronx County Salerno, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through December 1, 2008; it will not be published in the printed Official Reports.

Decided on July 12, 2004
Supreme Court, Bronx County

Delvin Sweeney, - Plaintiff(s),

against

Bruckner Plaza Associates LP, JOHN DOE "A" (an entity licensed to do business in the State of New York), JNS RECOVERY CORP., ZEREGA RECOVERY CORP. and JOHN DOE "B" (an entity licensed to do business in the State of New York), Defendant(s).



23941/00



Attorneys for Defendant Bruckner Plaza Assoc.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP

150 East 42nd Street

New York, New York 10017-5639

(212) 490-3000

Attorney for Plaintiff

Richard L. Giampa, Esq.

860 Grand Concourse, Suite 1H

Bronx, New York 10451

(718) 538-8600

Attorney for Defendant Zerega Recovery Corp.

Boeggeman, George, Hodges & Corde, P.C.

11 Martine Avenue

White Plains, New York 10606

(914) 761-2252

George D. Salerno, J.

Defendant, ZEREGA RECOVERY CORP. (ZEREGA), moves pursuant to C.P.L.R. 3212 to dismiss Plaintiff's Complaint, and in the alternative granting leave to ZEREGA to amend its answer to assert the defense that the statute of limitations bars Plaintiff's action. Defendant, BRUCKNER PLAZA ASSOCIATES L.P. (BRUCKNER), by separate motion also moves for summary judgment dismissing Plaintiff's Complaint. Plaintiff, DELVIN SWEENEY [*2](SWEENEY), cross moves for partial summary judgment on the issue of liability against both ZEREGA and BRUCKNER. All motions are consolidated for disposition.

Plaintiff, SWEENEY, brings this action to recover monetary damages against Defendants BRUCKNER and ZEREGA, asserting six causes of action for: (1) false arrest/false imprisonment, (2) assault, (3) conversion, (4) trespass to chattel, (5) prima facie tort, and (6) negligence. All Plaintiff's claims are based upon the following allegations and contentions:

On December 23, 1997, between 5 p.m. and 6:30 p.m., Plaintiff SWEENEY, his brother, Henry Smith, and a seven year old child, Lamin Kamara, went to the Caldor Department Store, located at 1998 Bruckner Boulevard. (SWEENEY EBT p. 20). This store is located in a small shopping mall owned by BRUCKNER. Plaintiff parked his vehicle in a parking space reserved for drivers who are handicapped. It is not disputed that Plaintiff is a quadriplegic and confined to a wheelchair. (SWEENEY EBT p. 20). After shopping in Caldor for approximately 30 minutes, SWEENEY, his brother, and the child returned to the parking lot and soon realized that the van was missing from the place where SWEENEY had parked his vehicle. (SWEENEY EBT p. 21). Upon speaking with a woman who was in a car that was parked adjacent to where SWEENEY had parked his vehicle, Plaintiff learned that his van had been towed to a parking lot maintained by ZEREGA. (SWEENEY EBT p. 43). Plaintiff and his companions then approached the tow truck driver, an employee of the ZEREGA, who had returned to Caldor shopping center. The Plaintiff and his brother spoke to the tow truck driver who informed Plaintiff that his vehicle was towed away and although the tow truck driver could not return Plaintiff's vehicle to the parking lot, the Plaintiff should go and recover his vehicle himself. (SWEENEY EBT p. 47). The Plaintiff called the police for assistance, but after waiting a short period, he decided to leave and retrieve the van himself. The ZEREGA lot where the van had been taken was approximately 12 blocks from the location of Caldor. The Plaintiff traveled by wheelchair with his brother's assistance to the parking lot on Zerega Avenue. (SWEENEY's EBT p. 50). When Plaintiff and his companions went to the ZEREGA lot, his van was released without charge. (SWEENEY EBT p. 51).

The next day, SWEENEY sought medical attention and was diagnosed with pneumonia. That same day (December 24, 1997), SWEENEY and his brother decided to go back to the Zerega Avenue lot to take photographs. Both SWEENEY and his brother allegedly remained in the van. SWEENEY states that the driver that had towed his van saw SWEENEY taking pictures and tried to run them over. (SWEENEY EBT p. 99). Plaintiff alleges that as a result of the events that occurred, he developed pneumonia and "great permanent physical and mental injury" and also sustained "cane palsy" to his right hand.

In opposition, the Defendant contends that Plaintiff's van did not have a license plate indicating that plaintiff was handicapped and therefore his vehicle was illegally parked in a handicapped parking space.

(1) False Imprisonment

It is well established that in order to maintain a cause of action for false imprisonment, the plaintiff must show that: (1) the defendant intended to confine the plaintiff, (2) the plaintiff was aware of his confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged. Broughton v. State of New York, 37 NY2d 451 [*3](1975); see also Restatement (Second) of Torts, §35 (1965).

No evidence is presented to show that the Defendants intended to confine Plaintiff. SWEENEY stated in his deposition that the tow truck driver that he spoke with told him that he could "go and get" the van from where it had been taken.(SWEENEY EBT p. 84). Although SWEENEY was handicapped and was left without transportation after his vehicle had been removed, his physical disability did not amount to a confinement amounting to false imprisonment. SWEENEY was not confined, since he could, and did, leave the Caldor parking lot, as well as the Zerega Avenue parking lot - the place where his vehicle was towed. Thus, both BRUCKNER's and ZEREGA's motion for summary judgment to dismiss the cause of action grounded on false imprisonment is granted, and SWEENEY's cross motion in that regard is denied.

(2) Assault

Plaintiff's cause of action to recover damages for assault is dismissed. In order to have a cause of action for assault, the plaintiff must establish intent and a reasonable belief that he is about to receive imminent bodily injury; however, there need not be actual physical contact. Masters v. Becker, 22 AD2d 118 (2nd Dept. 1964); See also, Restatement (Second) of Torts, §16 (1965). Here, insufficient evidence is presented as to whether SWEENEY had a reasonable belief that he was in imminent danger of bodily injury. All that is alleged in SWEENEY'S deposition is that a tow truck backed up in the direction of where they were parked taking pictures. (SWEENEY EBT p. 99). Therefore, the plaintiff does not have a valid cause of action of assault and this cause of action is dismissed.

Further, in order for ZEREGA to be held vicariously liable for alleged assault committed by one of its employees, plaintiff is required to establish that the alleged assault was within the scope of the employee's duties and the condoned, instigated or authorized by the employer. Yeboah v. Snapple Inc., 286 AD2d 204, 205 (1st Dept. 2001); see also, Piniewiski v. Panepinto and Laborers International Union of North America, 267 AD2d 1087 (4th Dept. 1999). Here, no evidence is presented that the employee was acting within the scope of his employment. His duties involved towing vehicles which are not properly parked. In addition, an employer is under no duty to inquire as to whether an employee has been convicted of a crime, or has vicious propensities. Liability will only attach when the employer knew or should have known of the employee's violent propensities. Yeboah, 286 AD2d at 205. There is insufficient evidence raised to support such a contention. Therefore, ZEREGA's motion to dismiss the assault cause of action is granted. In addition, it is uncontested that BRUCKNER cannot be held liable for the assault.

- - Statute of Limitations

Assuming plaintiff had stated a cause of action for assault and false imprisonment, both causes would be time-barred. C.P.L.R. 215(3) requires that an action to recover damages for assault, battery, or false imprisonment must be commenced within one year. The alleged false imprisonment and assault took place on December 23, 1997 and the action was not commenced until October 10, 2000.

ZEREGA seeks leave to plead the statute of limitations defense in Defendant's Answer. Failure to plead this defense in a responsive pleading could result in a waiver of the defense. [*4]However, leave to amend a pleading shall be "freely given", pursuant to C.P.L.R. 3025, "absent any prejudice or surprise resulting directly from the delay of raising the defense." Fahey v. County of Ontario, 44 NY2d 934 (1978). Further, even though a statute of limitations defense "not contained in a responsive pleading is deemed to have been waived (see C.P.L.R. 3211[e])" leave to amend one's pleadings is to be freely granted absent prejudice or surprise to the party opposing the motion." Motteler v. 142-144 Green Street Corp., 228 AD2d 925 (2nd Dept. 1991).

Moreover, in the absence of surprise or prejudice to the plaintiff, the decision to permit the amendment will not be disturbed even where the court in the exercise of discretion grants the motion to amend an answer to plead the statute of limitations." Mushatt v. Tomkins Community Hospital, 228 AD2d 925 (3rd Dept. 1996). In Mushatt, supra,the defendant that did not raise the statute of limitations defense was nevertheless granted leave to amend his answer because the plaintiff could not claim that the defense was a surprise since that defense had been included in the answer of the co-defendant. Id. Here, BRUCKNER pleaded the statute of limitations as an affirmative defense. The Plaintiff cannot claim surprise since one of the two Defendants raised the affirmative defense in their responsive pleading. The Plaintiff is therefore not prejudiced. Since the causes of action for assault and false imprisonment are dismissed on substantive grounds, ZEREGA's motion to amend its answer to assert a statute of limitations defense is deemed moot.

(3) & (4) Conversion and Trespass to Chattel

Defendant's and Plaintiff's motion for summary judgment on Plaintiff's claims for conversion and trespass to chattel are denied because there are triable issues of fact with regard to each of these claims. However, Plaintiff must choose which remedy he will pursue.

The distinction between conversion and trespass to chattels is that where a defendant merely interfered with plaintiff's property then the cause of action is for trespass, while denial of plaintiff's dominion, rights, or possession is the basis of an action for conversion. Sporn v. MCA Records, Inc., 462 NY2d 482, 487 (1983).

A conversion is therefore an unauthorized assumption and exercise of the right of ownership of property belonging to another to the exclusion of the owner's rights. A conversion occurs when someone who owns and/or has a right to possess personal property proves that the property is in the unauthorized possession of another. Thus, in order to state a cause of action for conversion, "a plaintiff must establish legal ownership of a specific identifiable piece of property and the defendant's exercise of dominion over or interference with the property in defiance of the plaintiff's rights. " Disena v. DiSena, 266 AD2d 673 (3rd Dept. 1999), quoting Ahles v. Aztec Enters., 120 AD2d 903 (3rd Dept. 1986). Here, the vehicle is clearly owned by plaintiff and by removing the vehicle the Defendants exercised control over it. Whether such conduct by ZEREGA was reasonable, as well as plaintiff's claim that his vehicle was damaged from the towing, present questions of fact that require resolution by a trial.

With respect to the cause of action for trespass to chattel, the four essential elements are (1) intent, (2) physical interference with (3) possession (4) resulting in harm. Consequently, the same issues of fact present with conversion are all present regarding the cause of action for trespass to chattel.

Defendant's retention of SWEENEY's vehicle lasted no more than two or three hours. [*5]However, such a brief period goes to SWEENEY's damage claim and does not impair his right to sue for conversion or trespass to chattel. SWEENEY's vehicle was nevertheless taken without his consent and if unauthorized then the defendants interfered with SWEENEY's use and enjoyment of his vehicle.

BRUCKNER and ZEREGA's motions to dismiss the cause of action for both conversion and trespass to chattel are denied, as there are questions of fact regarding whether ZEREGA's and BRUCKNER's removal and retention of the vehicle was reasonable. However, as stated above, the court of appeals has distinguished conversion and trespass to chattels. Sporn, 462 NY2d at 487. Therefore, prior to the time of trial, SWEENEY must elect which cause of action he wishes to pursue.

(5) Prima Facie Tort

In order to establish a cause of action for a prima facie tort, there must be an intentional infliction of harm or a reckless infliction of harm without regard to its consequences, resulting in special damages without excuse or legal justification by an act or series of acts which would otherwise be lawful. Penn-Ohio Steel Corp. v. Allis Chalmers Manufacturing Co., 7 AD2d 441 (1st Dept. 1959); See also, Curiano v. Suozzi, 63 NY2d 113,117 (1984). There can be no recovery in prima facie tort unless malevolence is the sole motive for defendant's otherwise lawful act. Spitzer v. Linder, 59 NY2d 314 (1983). Here, that is clearly not the case, as ZEREGA was permitted to tow illegally parked cars for profit, and if, as claimed in the case at bar, ZEREGA made a mistake and improperly towed plaintiff's vehicle, such conduct would not give rise to a prima facie tort. Thus, BRUCKNER and ZEREGA'S motion for summary judgment on this cause of action is granted, and SWEENEY'S cross motion in that regard is denied.

(6) Negligence

Plaintiff has pleaded a cause of action for negligence. Therefore, plaintiff must establish (1) the existence of a legal duty of the defendant to the plaintiff, (2) a breach of that duty, and (3) injuries proximately resulting back from that breach. Prosser and Keaton on Torts, §30, at 164 (6th Ed. 1984). Here, BRUCKNER contends that the only duty owed to the plaintiff was to keep the parking lot reasonably safe for the protection of patrons coming to the shopping center. Woolard v. New Mohegan Diner, 258 AD2d 578 (2nd Dept. 1999). Here, ZEREGA alleges that it was authorized by BRUCKNER to remove vehicles that were improperly parked in spaces set aside for disabled patrons. Admittedly SWEENEY's car did not have handicap plates. Plaintiff contends, that despite the absence of handicap plates, his vehicle did not look like an ordinary vehicle, which should have alerted defendant not to tow away his vehicle. Further the Plaintiff contends that he had stickers on the side windows, as well as on the dashboard, that were sufficient to identify his vehicle as a handicapped vehicle (SWEENEY EBT pp. 31-32) and therefore, improper to tow from a handicap parking space. Thus, the factual issues presented require the denial of all motions for accelerated relief, except as otherwise stated in this opinion.

This constitutes the decision and order of this Court.

Dated: July 12, 2004______________________________

George D. Salerno, J.S.C.