Sada v Kohl's Dept. Stores, Inc.
Annotate this CaseDecided on January 7, 2010
Supreme Court, Kings County
Donna Sada, Plaintiff,
against
Kohl's Department Stores, Inc., Defendant.
28758/07
Plaintiff was represented by Michael Fineman, Esq. Defendant was represented by Christopher R. Invidiata, Esq. of counsel to the law office of Steven F. Goldstein, LLP.
Jack M. Battaglia, J.
In her Complaint, plaintiff Donna Sada alleges that on August 25, 2006, she went to defendant Kohl's Department Stores, Inc.'s store ("Kohl's") at 8973 Bay Parkway, Brooklyn to purchase clothing. (See Complaint, ¶12.) "[U]nbeknownst" to Plaintiff, "her two daughters attempted to steal a number of articles of girl's [sic] clothing." (Id., ¶14.) Plaintiff was then confronted by Kohl's security guard, Shawn Scott, "in regards to the attempted theft by her daughters." (See id., ¶15.) "Upon information and belief, plaintiff denied knowledge and/or involvement in the attempted theft by her daughters." (Id., ¶16.) Scott then "caused a telephone call to the New York City Police Department to be placed and a number of police officers did respond to the aforementioned location." (See id., ¶ 17.) Scott allegedly "falsely and maliciously state[d] that the plaintiff engaged in a larceny with her daughters." (See id., ¶18.) Plaintiff and her daughters were then placed in handcuffs, and escorted into a police vehicle. (See id., ¶19.) After appearing in Kings County Criminal Court on numerous occasions (see id., ¶ 21), a criminal proceeding ended in a dismissal on June 20, 2006. (See id., ¶ 22). Thereafter, Plaintiff brought the instant action, alleging causes of action for defamation, including libel and slander per se, false imprisonment, malicious prosecution, and negligence.
Kohl's now moves, pursuant to CPLR 3212, for summary dismissal of the Complaint, contending that it is entitled to dismissal on the ground that its "actions were protected by privilege" pursuant to General Business Law § 218, which provides in pertinent part: "In any action for false arrest, false imprisonment, unlawful detention, defamation of character, assault, trespass, or invasion of civil rights, brought by any person by reason of having been detained on or in the immediate vicinity of the premises of (a) a retail mercantile establishment for the purpose of investigation or questioning . . . [*2]as to ownership of any merchandise, . . . it shall be a defense to such action that the person was detained in a reasonable manner and for not more than a reasonable time to permit such investigation or questioning by a peace officer acting pursuant to his special duties, police officer or by the owner of the retail mercantile establishment . . . his authorized employee or agent, and that such officer, owner, employee or agent had reasonable grounds to believe that the person so detained . . . was committing or attempting to commit larceny on such premises of such merchandise . . . As used in this section, reasonable grounds' shall include, but not be limited to, knowledge that a person (i) has concealed possession of unpurchased merchandise of a retail mercantile establishment, or (ii) has possession of an item designed for the purpose of overcoming detection of security markings attachments placed on merchandise offered for sale at such an establishment, . . . and a reasonable time' shall mean the time necessary to permit the person detained to make a statement or to refuse to make a statement, and the time necessary to examine employees and records of the mercantile establishment relative to the ownership of the merchandise . . ."
Plaintiff cross-moves, also pursuant to CPLR 3212, for summary judgment on her Complaint.
The purpose of General Business Law § 218 is "to protect merchants from false arrest suits even where the criminal actions are eventually dismissed" (see Jacques v Sears, Roebuck & Co., 30 NY2d 466, 472 [1972]), and to help "overcome the extreme reluctance with which merchants now attempt to interfere with or apprehend shop-lifters" (see id. [internal quotation marks and citation omitted]; see also Guion v Associated Dry Goods Corp. (Lord & Taylor Division), 56 AD2d 798, 798 [1st Dept 1977]["And although store owners may not proceed with abandon to rectify the problem [of shoplifting], they should not be deterred from attempting to apprehend those responsible for the theft of merchandise."].)
Initially, although defendant Kohl's fails to raise General Business Law § 218 as an affirmative defense in its Verified Answer (see Affirmation in Support, Exhibit B), the Court may nonetheless consider its motion on this ground since there has been no operable prejudice and surprise to Plaintiff under the circumstances. (See Rosario v City of New York, 261 AD2d 380, 380 [2d Dept 1999] ["Use of an unpleaded defense in a summary judgment motion is not prohibited as long as the opposing party is not taken by surprise and does not suffer prejudice thereby"]; Lynbrook Glass and Architectural Metals Corp. v Elite Assocs., 225 AD2d 525, 526 [2d Dept 1996].) Plaintiff does not object to consideration of defendant Kohl's motion on this ground, and, in any event, the issues raised by the affirmative defense have been fully briefed by the parties.
Contrary to Defendant's contentions, General Business Law § 218 does not provide an affirmative defense for Plaintiff's negligence and malicious prosecution causes of action. In Richardson v New York University (202 AD2d 295 [1st Dept 1994]), which is cited by Defendant, the First Department declares only that General Business Law § 218 "gives a retail merchant a defense in an action for false arrest and imprisonment for its detention of a suspect shoplifter"(see id. at 296 [emphasis added]), and the decision itself demonstrates that a summary judgment movant [*3]must make a separate evidentiary showing with respect to any malicious prosecution or negligence cause of action, even if those causes of action arise from the same incident. The First Department separately considered the plaintiff's malicious prosecution and negligence causes of action, after first considering the applicability of General Business Law § 218 to the plaintiff's false arrest and imprisonment causes of action. Here, defendant Kohl's fails to make any showing of entitlement to summary judgment with respect to Plaintiff's negligence or malicious prosecution causes of action.
Accordingly, the branches of Defendant's motion seeking summary judgment dismissal of Plaintiff's negligence and malicious prosecution causes of action are DENIED.
In order to obtain summary judgment dismissal of Plaintiff's causes of action for defamation and false imprisonment based upon the defense conferred by General Business Law § 218, Defendant must demonstrate prima facie that Plaintiff was detained in a reasonable manner and for not more than a reasonable time to permit an investigation or questioning by Defendant, and that Defendant had reasonable grounds to believe that Plaintiff was committing or attempting to commit larceny of merchandise. (See General Business Law § 218; see e.g. Neuman v Century 21 Department Stores, LLC, 57 AD3d 329, 329 [1st Dept 2008]; Muza v Niketown New York, 278 AD2d 13, 14 [1st Dept 2000].)
In support of its motion, Kohl's proffers selected portions of its loss prevention officer Shawn Scott's deposition testimony that he observed Plaintiff selecting merchandise with her two daughters, Brittany and Olivia; that all three of them entered the fitting room area at the same time; that the two girls left the fitting room area with two handbags; that Brittany and Olivia left the store without paying for merchandise concealed in the handbags; that they went to the parking lot and placed all of the merchandise from the handbags into another bag; that they then returned to the store with the empty handbags; that they selected more merchandise and returned to the fitting room area; that he then asked another loss prevention officer, Heather Diaz, to observe the girls in the fitting room area; that the two girls again exited the fitting room area with the handbags full of clothing, and attempted to exit the store; that as they were exiting the store, they were stopped by Mr. Scott and his supervisor, Alex Mustovich; and that the girls were detained in the lobby and brought to the security room.
Mr. Scott testified further that he never approached the vehicle in the parking lot to apprehend the girls; that he had observed the girls, through closed circuit cameras located in the parking lot, removing merchandise from their handbags to another bag in the vehicle; that he never observed the girls and their mother in the dressing room area; that he was informed by Heather Diaz that Plaintiff had been in the same dressing room stall as the girls; that he observed the two girls exiting the fitting room and store through the security camera; that he called the police within five minutes of detaining the girls; that the police arrived prior to detaining Plaintiff; that the police instructed him to detain Plaintiff and bring her to the security office; that the girls told him and the police that Plaintiff "got them to do it"; that Plaintiff was never found with any stolen merchandise in her possession; and that the police made the determination to press charges against Plaintiff. [*4]
Defendant also submits portions of the deposition testimony of Plaintiff's daughters Brittany and Olivia, in which they both admit that they took the merchandise out of the store without paying for it. Moreover, they both testified that they were in one stall, and that their mother and their youngest sister Vehonna were in a separate stall while they were all in the dressing room area; that they carried the merchandise out of the store in two handbags; that they moved the items from their handbags into a large bag while in the vehicle; that a security officer from Kohl's knocked on the window of the vehicle in the parking lot, and that they were told to go to the store's security office. Significantly, however, Olivia also testified that Brittany went into the same dressing room stall occupied by Plaintiff and their youngest sister Vehonna in order to get the car keys, but that Brittany did not bring any of the handbags or any merchandise into Plaintiff's stall.
Defendant also submits portions of Plaintiff's deposition testimony that she was in the store with three of her daughters in order to buy a gift for a party that she was going to later that night; that she was with her youngest daughter Vehonna the entire time; that her two other daughters Brittany and Olivia were "doing their own thing"; that during some period, she was in the fitting room area with all three of her daughters, but that Brittany and Olivia were in a different stall trying on clothes; that she had told Brittany and Olivia that they could try on clothes, but that she was not going to buy any clothes for them that day; that while in the fitting room area, she gave her daughters the keys to her vehicle in order to allow them to go to Toys R Us, and then go wait in the vehicle for her and Vehonna; that she was stopped by a Kohl's security guard after she purchased items at the cash register; that she was asked to go back to the security office where she saw Brittany and Olivia, and was shocked to learn that they took items from the store; that Olivia blamed Brittany; that Brittany did not say anything; that nobody told her that she could not leave the security office, but that she would never leave her children under the circumstances; and that her daughters eventually pled guilty to shoplifting.
Defendant also submits a copy of its own incident report which reads as follows: "On 8/25/06, I Shawn Scott, LPO for Kohl's in Caesar's Bay, Brooklyn, NY while monitoring the store via CCTV [sic]. I, [sic] observed three unknown females later known to me as Brittany Sada, Olivia Sada and Donna Sada, entering the Childrens [sic] Department. She [sic] selected several items from the selling racks and place [sic] them inside a [Kohl's] shopping cart. She then went to the girls [sic] Fitting [sic] room. The girls [sic] fitting room had been cleared of all merchandise before miss [sic] Sada entered. Miss Sada was accompanied by her sister Olivia Sada and her mother Donna Sada. They walked in the same stall and remained there for a few minutes. Miss Sada and her sister, Olivia Sada then exited the fitting room carrying two large handbags. Their mother remained behind but then exited. The fitting room was inspected after she had left and none of the merchandise they walked in with could be found. Miss Sada and her sister were observed as they went down the main floor carrying the items concealed inside two large handbags. They walked toward the exit and passed all points of sale and made no attempt to pay for the concealed items they were carrying. . [sic] She [sic] exited the store and I then approached Miss [*5]Sada and her sister. After identifying myself as Kohls security, I explained to her that she was being detained for shoplifting. I asked Miss Sada and her sister to accompany me to the LP office where the items they failed to pay for were recover [sic] from their possession. Once in the office all paperwork was completed including the civil demand and criminal trespass. Miss Sada and her sister were then handed over to the police. This case was disposition [sic] by LPM Alex Mustafich. Their mother Mrs. Donna Sada, who was in the fitting room at the time the merchandise was concealed provided her daughters with her large handbags for the merchandise to be concealed in. The police officer arrested Mrs. Sada for endangering the welfare of minors and merchandise theft."
Defendant also submits a copy of an accusatory instrument dated August 29, 2006, which was prepared a police officer James Sinnott. The instrument indicates that the facts stated in that instrument are based upon information furnished by Mr. Scott and are "true upon [his] personal knowledge." Attached thereto is a signed statement from Mr. Scott indicating that he has "read the accusatory instrument" and that the "facts stated in that instrument to be on information furnished by me are true upon my personal knowledge." The document further reads, "FALSE STATEMENTS MADE IN THIS DOCUMENT ARE PUNISHABLE AS A CLASS A MISDEMEANOR PURSUANT TO SECTION 210.45 OF THE PENAL LAW." The instrument indicates that the deponent, a police officer, "is informed by Shawn Scott . . . the informant observed the defendant acting in concert with two juvenile girls take various property, including children's jean's [sic], children's shirts, children's pants, and other children's clothing and attempt to leave the above location without pay [sic] for said items. The deponent further states that deponent is further informed by informant that the some [sic] of above items were recovered from defendant and the two juvenile girls and from other of the above items were recovered from defendant's car."
Based upon the inconsistencies between Mr. Scott's deposition testimony, the Kohl's incident report purportedly prepared by Mr. Scott, and the accusatory instrument purportedly based upon information supplied by Mr. Scott, there are issues of fact as to the stated grounds for Plaintiff's detention, and whether such grounds were reasonable. Moreover, the deposition testimony of Plaintiff, Brittany, Olivia, and Mr. Scott further demonstrates the existence of issues of fact including, among other things, whether Mr. Scott, or any other Kohl's employee, ever observed Brittany and Olivia in the same dressing room stall as Plaintiff, whether Plaintiff ever had any merchandise for which she did not pay on her possession at the time she was detained, whether Mr. Scott observed Brittany and Olivia return to the store to take more merchandise after they had already taken merchandise and left the store, whether Mr. Scott detained Brittany and Olivia while they were in a vehicle or while they were about to exit the lobby of the store; and, perhaps most importantly, whether Brittany and Olivia ever informed Kohl's or the police that Plaintiff "got them to do it". Since the proffered evidence demonstrates the existence of issues of fact regarding whether Defendant had reasonable grounds to detain Plaintiff, and to then inform the police that Plaintiff was involved in the larceny committed by her daughters, Defendant fails to establish prima facie entitlement to summary judgment on the affirmative defense of General Business Law § 218. [*6]
Accordingly, Defendant's motion is DENIED in its entirety.
To the extent Plaintiff seeks summary judgment dismissal of the defense provided by General Business Law § 218, its cross-motion is denied because of the same issues of fact requiring denial of Defendant's motion. Indeed, Mr. Scott's deposition testimony that Brittany and Olivia told him and the police that Plaintiff "got them to do it", and conflicting evidence as to whether Plaintiff was ever observed in the same dressing room stall as Brittany and Olivia prior to the detention of the daughters for taking items that were in the dressing room area, among other things, sufficiently demonstrate the existence of issues of fact as to whether Defendant had reasonable grounds to detain Plaintiff pursuant to General Business Law § 218.
Since General Business Law § 218 provides a defense to Plaintiff's false imprisonment and defamation causes of action, the branches of Plaintiff's motion seeking summary judgment on those causes of action are also DENIED. Moreover, with respect to the false imprisonment cause of action, there is at least a question of fact as to whether Plaintiff was ever detained by Defendant. In this regard, Plaintiff testified that nobody from Kohl's ever told her that she could not leave the security office, but that she would not have left her children in the security office under the circumstances. (See e.g. Gordon v May Dep't Stores Co., 254 AD2d 327, 327 [2d Dept 1998].) Moreover, the store is not "held liable for the period after the police took [her] into custody." (See Jacques v Sears, Roebuck & Company, 30 NY2d at 475.)
Plaintiff also seeks summary judgment on her cause of action alleging malicious prosecution. However, Plaintiff only contends that the criminal proceeding was resolved in her favor, but fails to make any showing that Defendant instituted or continued a criminal proceeding against her with malice and without probable cause to believe it could succeed. (See Smith-Hunter v Harvey, 95 NY2d 191, 195 [2000]; Broughton v State, 37 NY2d 451, 457 [1975]; Canonico v Hayes, 127 AD2d 911, 912 [3d Dept 1987].) Moreover, for reasons already stated above, there exist issues of fact as to whether there was probable cause for the institution of criminal proceedings against Plaintiff. (See Richardson v New York University, 202 AD2d at 296 [lack of "reasonable grounds" for purposes of General Business Law § 218 is similar to lack of "probable cause" for purposes of a malicious prosecution cause of action].) Accordingly, the branch of Plaintiff's motion seeking summary judgment on her malicious prosecution cause of action is DENIED.
In her cross-motion, Plaintiff also contends that "defendant is responsible for the spoliation of evidence; thus, its pleadings should be struck, or in the alternative, be precluded from introducing contrary evidence requiring summary judgment in plaintiff's favor." As another alternative, Plaintiff seeks to preclude "the defendant from offering evidence of any conduct which would have been preserved by the video tape [sic] in question, and finding that after such preclusion, there are no triable issues of fact."
While Plaintiff frames her motion, in part, in terms of a summary judgment motion, the Court will treat Plaintiff's motion as one seeking a sanction for spoliation of evidence. "A party seeking a sanction pursuant to CPLR 3126 such as preclusion or dismissal is required to demonstrate that [*7]a litigant, intentionally or negligently, disposed of crucial items of evidence before the adversary had an opportunity to inspect them, thus depriving the party seeking a sanction of the means of proving his claim or defense." (Kirschen v Marino, 16 AD3d 555, 556 [2d Dept 2005].) "The gravamen of this burden is a showing of prejudice", which must be "severe". (Id.)
Here, it is undisputed that Defendant lost the surveillance videotape prior to Plaintiff ever having an opportunity to view it. Nonetheless, in her cross-motion, the only prejudice asserted by Plaintiff as a result of the missing surveillance videotape is that "it will be unnecessarily difficult to confront Mr. Scott's version of the facts to show that they are fabrications and that Mr. Scott not only maliciously and falsely accused the plaintiff of being involved in her daughters' error in judgment, but that he affirmatively violated the defendant's own policies while under the supervision of his loss prevention manger, Mr. Mustovich"; and that "without the video tape [sic] in question, this case becomes essentially a case of he said/she said, while the video tape [sic] would show conclusively that Mr. Scott is not to be believed and is an untruthful witness." Essentially, Plaintiff only asserts that she has been deprived of a means to impeach Mr. Scott's credibility, which in turn relates to a matter of defense; Plaintiff does not assert that she has been deprived of the means of proving any of her claims.
Since Mr. Scott's deposition testimony, the incident report prepared by Mr. Scott, and the accusatory instrument based upon information supplied by Mr. Scott contain conflicting accounts of what Mr. Scott observed prior to the detention of Plaintiff, it does not appear that the surveillance videotape is crucial to even impeaching Mr. Scott's testimony, let alone being crucial to proving any of Plaintiff's claims. Indeed, there appears to be an abundance of material to impeach Mr. Scott's credibility, and Plaintiff can still testify as to her own conduct in the store prior to her daughters' and her own alleged detention. (See Barone v City of New York, 52 AD3d 630, 631 [2d Dept 2008].)
It should be noted that, in opposition to the cross- motion, Defendant takes the position that the videotape does not show any conduct on the part of Plaintiff that would indicate that she was involved in the larceny committed by her daughters. (See Affirmation in Opposition to Cross-Motion, ¶ 4.) Such position clearly contradicts Kohl's own incident report, which suggests that while observing "CCTV", Mr. Scott observed, among other things, that Brittany, Olivia, and Plaintiff were all in the same dressing room stall. Even though Defendant's position as to the videotape supports Plaintiff's version of the incident, Plaintiff nonetheless seeks, among other things, that Defendant be precluded from "offering evidence of any conduct which would have been preserved by the video tape [sic] in question."
Even though Plaintiff fails to demonstrate that the surveillance tape is crucial or key evidence such as to warrant the extreme sanction of striking Defendant's Answer or granting Plaintiff summary judgment based upon a broad preclusion order, it is clear that a sanction for losing the surveillance tape is warranted. Accordingly, Defendant shall be precluded from offering any evidence or testimony about the contents of the surveillance videotape (see e.g. Lebron v Rite Aid Corporation, 9 Misc 3d 137[A], 2005 NY Slip Op 51725[U], *1 [App Term, 1st Dept 2005] [preclusion from offering testimony of what the videotape portrayed in a case where plaintiff alleged [*8]false arrest]), and an adverse inference charge shall be given at the time of trial (see Minaya v Duane Reade International, 66 AD3d 402, 403 [1st Dept 2009] [adverse inference charge given where Defendant failed to preserve video]; Barone v City of New York, 52 AD3d at 631 [adverse inference for missing surveillance videotape]; Tomasello v 64 Franklin, Inc., 45 AD3d 1287, 1288 [4th Dept 2007] [adverse inference for lost surveillance videotape].)
In sum, Defendant's and Plaintiff's respective motions for summary judgment are denied.
The branch of Plaintiff's motion seeking a sanction for Defendant's spoliation of a surveillance
videotape is GRANTED to the extent that Defendant shall be precluded from offering any
evidence or testimony about the contents of the surveillance videotape, and an adverse inference
charge shall be given at the time of trial.
January 7, 2010___________________
Jack M. Battaglia
Justice, Supreme Court
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