Opinion
April 10, 1989
Appeal from the Supreme Court, Westchester County (Delaney, J.).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the order is vacated, the motion is denied, and the complaint is reinstated; and it is further,
Ordered that the plaintiffs are awarded one bill of costs, payable by the respondents appearing separately and filing separate briefs.
The appeal from the intermediate order must be dismissed because the right of appeal therefrom terminated with the entry of the judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
Contrary to the findings of the Supreme Court, it cannot be said that as a matter of law the defendants were privileged to detain the plaintiffs during the execution of the warrant to search their place of employment. Viewing the evidence in a light most favorable to the plaintiffs (see, Dowsey v. Megerian, 121 A.D.2d 497), it is clear that during the execution of the search warrant, the defendants detained the plaintiffs for approximately two hours. To establish a cause of action to recover damages for false imprisonment, the plaintiffs must show that "(1) the defendants intended to confine [them], (2) the plaintiff[s] were conscious of the confinement, (3) the plaintiff[s] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v. State of New York, 37 N.Y.2d 451, 456, cert denied sub nom. Schanbarger v Kellogg, 423 U.S. 929; Restatement [Second] of Torts § 35). Contrary to the court's conclusion, however, the execution of a search warrant does not justify the detention of all of the persons found within the premises to be searched (see, Barr v County of Albany, 50 N.Y.2d 247). Moreover, the defendants herein were acting in an investigatorial capacity and may be at best qualifiedly immune from civil liability (see, Drake v. City of Rochester, 96 Misc.2d 86, affd 74 A.D.2d 996; Cunningham v State of New York, 71 A.D.2d 181). Thus, issues of fact exist concerning the reasonableness of the defendants' conduct and the applicability of their qualified immunity (see, Parvi v. City of Kingston, 41 N.Y.2d 553; Sindle v. New York City Tr. Auth., 33 N.Y.2d 293, rearg denied 34 N.Y.2d 755).
Finally, we find that the determination of a Federal court in favor of the defendants in the plaintiffs' prior civil rights action pursuant to 42 U.S.C. § 1983 (see, Bacon v. County of Westchester, US Dist Ct, S.D.N.Y., May 30, 1986, Keenan, J.), is not entitled to collateral estoppel effect to bar the litigation of the plaintiffs' cause of action under State law. The Federal court declined to exercise its pendent jurisdiction over the plaintiffs' false imprisonment cause of action and thus no determination on the merits was reached (see, United Mine Workers v. Gibbs, 383 U.S. 715, 726). Furthermore, there was no identity of issues nor were the plaintiffs afforded a full and fair opportunity to litigate their cause of action under State law (see, Schwartz v. Public Adm'r of County of Bronx, 24 N.Y.2d 65). Thompson, J.P., Bracken, Brown and Rubin, JJ., concur.