Opinion
113110/2005.
January 14, 2011.
McAndrew, Conboy Prisco, LLP, By: William J. Poisson, Esq., Woodbury NY, for the Plaintiff.
Bartlett, McDonough, Bastone Monaghan, LLP, By: Neil C. Mascolo, Esq., Mineola NY, for the Defendant.
DECISION AND ORDER
Papers considered in review of this motion for summary judgment:
Papers Document Number
Notice of Motion, Affidavits, Exhibits 1 Memorandum of Law 2 Affirmation in Opposition, Exhibits, Affidavit 3 Reply Affirmation 4 Affidavit (Caltagirone) and DVD 5Defendant Linville moves for summary judgment and dismissal of the complaint in its entirety. For the reasons which follow, the motion is granted in part and denied in part.
This matter had been joined for discovery and trial, by order of the court dated December 21, 2006, with Patricia W. Linville v Graig Collin Henriques, Village Video Productions, Inc., NY Uplink and The Yale Club of New York, Index. No. 117399/2004. That action is currently stayed due to the Article 74 rehabilitation proceedings which have been filed for Atlantic Mutual Insurance Co., the insurance company which insures The Yale Club ( I/M/O Wrynn, Superintendent of Insurance v Atlantic Mutual Insurance Co., New York Co. Index No. 402424/2010 [Rakower, J., Sup. Ct.][Ord. 9/14/10]). Accordingly, as indicated in this court's order of October 18, 2010, the various summary judgment motions filed in Linville v Henriques cannot be decided until a party therein successfully seeks vacatur of the stay contained in Justice Rakower's September 14, 2010 order.
The Allegations
Plaintiff Henriques
According to the verified complaint, while working on December 13, 2005, at about 11:55 p.m., plaintiff Graig Henriques was assaulted and harassed by defendant Patricia Linville, who then wrongly reported the incident to the New York City Police Department in a manner that caused plaintiff to be arrested and arraigned on two counts of assault in the third degree, one count of attempted assault in the third degree, and one count of harassment in the second degree (Mot. Ex. A, Ver. Compl. ¶¶ 1-8).
Plaintiff testified at his examination before trial that he worked as a cameraman and truck operator, and on December 13, 2003, was hired to help broadcast a television event held at the Yale Club, by running television cable from his company's truck up a set of back stairs to cameras on the 18th floor, and then broadcasting the event from the truck (Mot. Ex. H, EBT of Graig Henriques, Sep. 11, 2009 [hereinafter Henriques EBT] 13, 14-16). When the event was over at about 11:00 p.m., he began rewinding the cable which involved trips down and up the back stairs to find and loosen snags in the cabling (Henriques EBT 29-32).
Plaintiff first encountered defendant as he climbed past the 13th floor (Henriques EBT 37). She was pacing back and forth, talking to herself, and "acting very, very strangely." (Henriques EBT 38). He did not speak to her (Henriques EBT 38-39). She began yelling, demanding to know his name and what he was doing, but he ignored her and worked with the cable on the floors above (Henriques EBT 42-44, 46). When he returned to the 13th floor, he tried to quiet her by saying he was doing his job (Henriques EBT 48-49). She tried to block his descent with her body, he maneuvered around her, and then she "jumped on" and "grab[bed]" his chest (Henriques EBT 50, 58:17-20; 59, 89). She hit his chest with her hand and arm, although not with force sufficient to move his body backward (Henriques EBT 62, 63, 64). She continued to demand to know his identity and to state that she would call security (Henriques EBT 59). He did not know if she had a weapon and was concerned for his safety (Henriques EBT 94). He was not injured in any fashion (Henriques EBT 89-90).
Plaintiff estimates that defendant is no more than five foot three inches in height and no more than 100 pounds (Henriques EBT 49-50). He describes himself as then being six foot three and about 200 pounds (Henriques EBT 78).
Plaintiff extended his right arm and pushed her left shoulder to separate her from him, using minimum force because of her size (Henriques EBT 60-61; 93-94). Defendant then walked backward to the corner of the wall located about six to eight feet away, and began to scream, flailing her arms somewhat (Henriques EBT 66, 68, 95, 96). She did not say anything about being injured and he had no sense that she was bruised, and he saw no blood (Henriques EBT 97-98). He "retreated," and at the same time, a man (Gregory Fischer, defendant's companion), appeared from another doorway and grabbed her by the arms (Henriques EBT 68). She resisted him and as he pulled her through the doorway, continued to scream that she was going to sue and to call the police (Henriques EBT 68-69).
Plaintiff then returned to his work and finished removing the cable (Henriques EBT 70-71). As he was leaving the building with the cable, he was stopped by Yale Club security officers (Henriques EBT 75-76). He was told a complaint had been issued against him (Henriques EBT 101). These men detained him in an elevator for about 15 minutes (Henriques EBT 104, 105). When the police arrived, he was told that they would interview the complainant and that if her story was different from his, he would be taken to jail (Henriques EBT 106). After about ten minutes, the officers remaining with him were notified to arrest him (Henriques EBT 107, 111). He was handcuffed, put in a police car, fingerprinted and photographed, and detained in a holding cell for three or four hours (Henriques EBT 111-112, 114-116). He was arraigned on the December 14, 2003, and released on his own recognizance (Henriques EBT 119, 120). Over the next several months, he appeared five times in Criminal Court, losing potential work assignments each time, but none specifically (Henriques EBT 124-125, 129, 133).
Plaintiff testified that he had no knowledge of what defendant said to the Club personnel or the police; he had nothing further to do with her, and had no knowledge of her contacts with the New York County District Attorney("DA")'s Office (Henriques EBT 134-135). Over the next several months, defendant never made an appearance in Criminal Court, and the criminal case was ultimately dismissed on speedy trial grounds on September 21, 2004 (Henriques EBT 145; Ver. Compl. ¶ 10).
According to plaintiff, he felt very humiliated and embarrassed about the arrest (Henriques EBT 149). For about two weeks after his arrest, he felt "tentative" about going out into public where people could accuse him of bad acts, and he continues to remain afraid of suddenly being arrested without cause (Henriques EBT 145-147). He crosses the street if he sees a woman walking alone because he now feels afraid of being accused of a crime and winding up in jail (Henriques EBT 154-155). His confidence in the world's systems has been shaken (Henriques EBT 149). He did not see a mental health person, but was helped by his family (Henriques EBT 147-148). The arrest has not affected his employment status, although he was never again called by the particular station for which he was working on December 13, 2003 (Henriques EBT 151). He has not suffered any physical impact (Henriques EBT 151-152).
Defendant Linville
Linville and her companion Gregory Fischer, residents of North Carolina, were staying at The Yale Club on holiday; on the evening in question, she had, at the suggestion of the Club's front desk, gone outside her room to the service area to investigate a bothersome mechanical noise (Mot. Ex. G, EBT of Patricia Linville, Apr. 28, 2009 [hereinafter Linville EBT] 27, 31, 32). She noticed plaintiff "rushing" up the stairs (Linville EBT 37). She also saw cable "floating" in the stairwell and walked over to look (Linville EBT 44, 45-46). Something hit her in the head with such force that she was caused to move backward (Linville EBT 48-49). She screamed for help (Linville EBT 51). Plaintiff rushed back down the stairs, stopped briefly, but did not help her, even when she said that something had hit her (Linville EBT 53-54, 64-65). She thought he was trying to flee, and became afraid as she realized by his clothing that he did not work for the Club (Linville EBT 57, 58). She asked who he was, but he covered up his badge (Linville EBT 58-59). She did not try to grab his badge or strike him (Linville EBT 67). However, he grabbed her left arm and left chest area, hurting her, and she felt that she was being thrown back (Linville EBT 60). Her head hit the concrete wall and she remembers "sort of going down." (Linville EBT 60). He then ran down the stairs (Linville EBT 62).
The next thing she remembers is the paramedics over her while she lay on the bed in her room (Linville EBT 72). She remembered that she was bleeding through her nose (Linville EBT 77) and that she had a "huge swelling of blood on [her] left arm, forearm," a hematoma (Linville EBT 77:12-13; 78). She did not recall plaintiff hitting her in the face (Linville EBT 80-81). Later she found that her left breast was "totally the deepest shade of purple I've ever seen" (Linville EBT 81:18-20).
She remembers the police asking her questions as she lay in her room, but remembers neither what was asked or what she answered (Linville EBT 87, 90). She does not remember giving a physical description of the man prior to getting into the ambulance (Linville EBT 85). Later, documents from the District Attorney's office were sent to her North Carolina home for signature (Linville EBT 86). She herself did not talk to anyone in the DA's office, except maybe once, several months after the incident (Linville EBT 87, 108, 112). The DA's office asked for a written statement and she gave one (Linville EBT 91).
Video Surveillance
Copies of a surveillance video which captured the incident at issue have been provided to the court on a DVD (Aff. in Opp. Ex. A, and separately). The parties' characterizations of what is shown on the DVD differ. Plaintiff contends that the video shows that he did not exhibit aggressive behavior, but rather that defendant yelled at him, lunged at him, and made contact with his chest and grabbed his clothes (Poisson Aff. in Opp. ¶ 35). Defendant claims that in the video, which has no sound, her back is to the camera, the parties' faces cannot be seen, and that plaintiff's arm is seen extending and she is moved backward, out of the view of the camera (Hock Reply Aff ¶¶ 30-32).
The court's review of the video, which has no audio, shows Linville pacing back and forth in the area of the stairwell apparently speaking or calling out, plaintiff Henriques running up stairs and then back down stairs, and apparently attempting to avoid interacting with her. There is, however, an interaction between them, but what exactly is transpiring is difficult to assess. At one point plaintiff's arm is raised, what can be interpreted as a defensive gesture and defendant Linville moves backward, before being grabbed and brought back to the room by Fischer, Of course, this is what the court saw. On a motion for summary judgment, to the extent the surveillance DVD is capable of being interpreted in more than one way, it is not for the court to usurp the role of the trier of fact at trial. What is clear is that the DVD does not clear up the factual disputes; indeed, not unlike the great Akira Kurosawa crime mystery film Rashomon, it is difficult to discern "the truth" even after viewing the incident several times on the surveillance DVD.
Non-party Fischer
Non-party Gregory Fischer testified that Linville went into the hallway from their room to check on the noise, and he then he heard her cry out in pain and scream that she was hurt (Aff. in Opp. Ex. B [hereinafter Fischer EBT], 70, 72, 73). Fischer ran to her and found her on the ground, "cowering in the corner," crying and screaming (Fischer EBT 73-74). He saw a tall man standing at the other side who "headed down the stairs as fast as he could" (Fischer EBT 73: 18-21). The man did not threaten him in any fashion (Fischer EBT 182). Fischer then helped defendant to stand up and they walked back to their room (Fischer EBT 74). Fischer called the front desk to ask for help because she had been hurt, and told the front desk that there had been a person in the stairwell when Fischer arrived who had then run down the stairs (Fischer EBT 87, 89-90). He did not call 911 (Fischer EBT 92). He did not initially think that Linville had been involved in any sort of altercation (Fischer EBT 90).
Fischer noticed a trickle of dark blood from her nose and bruising on her arms, but she was complaining of head pain (Fischer EBT 93-94, 95). She lay on the bed, "semi-conscious" (Fischer EBT 94-95). Yale Club personnel quickly arrived to their room (Fischer EBT 90). The police arrived shortly after that (Fischer EBT 97). Fischer told the police what he knew, including that he had seen a man run down the steps (Fischer EBT 98). They told him that they had someone in custody downstairs (Fischer EBT 183). They also told him that there was a surveillance camera in the stair well (Fischer EBT 99). Fischer heard Linville tell the police that something had fallen and hit her on the head, a man she had seen moments earlier came back down the stairs and she asked him to identify himself and tried to look at his badge, fearing he was an intruder; and she thought he had picked her up and thrown her, because she was on the floor (Fischer EBT 99). The police asked her questions, and took photographs of her arms and head (Fischer EBT 101). During the time the police were present, the paramedics arrived, and she was taken to the hospital emergency room (Fischer EBT 101, 107). She was released the next morning after various tests were performed (Fischer EBT 107). She was advised by the hospital not to leave the city for a few days (Fischer EBT 115). However, they then drove home to North Carolina (Fischer EBT 118-119).
The ambulance call report, not fully legible, states that upon arrival of the EMT person, she was found "sitting in bed in a Hotel. Pt does not appear in pain," but adds a description that includes the words "left arm pain head pain," "crying," and "left forearm" (Mot. Ex. K). The hospital discharge sheet from the next morning, also not entirely legible, indicates that defendant has a history of asthma, migraines, and GERD, and that upon examination, she was found to have, among other words, "mild L-spinal tenderness. Bruises medial forearm — no scalp hematoma/tenderness" (Id.). The "discharge impression" was "multiple contusions," "exacerbation [of] sciatic pain," and "migraine." (Id.).
The day after they arrived home, the New York emergency room doctor telephoned them to check on defendant's condition and based on what Fischer told the doctor, they were advised to take her to the local hospital (Fischer EBT 119-121). She stayed for two and a half days in the hospital's emergency care unit where tests were performed and the doctors tried to ascertain the source of her chest pain (Fisher EBT 123-124). In February they both took a previously planned sabbatical to California (Fischer EBT 129-130).
Fischer does not think he was asked by the Yale Club to provide a statement before they left for the hospital (Fischer EBT 107). He does not think that the police stated at that time that Linville would have to participate in a criminal case with regard to this incident (Fischer EBT 184). At some point, he and Linville knew that plaintiff Henriques had been criminally charged and that defendant Linville was deemed the victim (Fischer EBT 188, 189). Fischer recalls Linville being mailed a document containing a description in "legalese" of what had occurred, and he believed the document was sent back to the office which had sent it (Fischer EBT 185-187). At one point they tried to write a description of what happened to send to the DA, but Fischer does not know if it ever was sent (Fischer EBT 188). Documents sent to their home in North Carolina were responded to only in March or April 2004, because they had been in California, at which time Fischer was told it was "too late" (Fischer EBT 189). He and Linville learned "years later" that the criminal case had been dismissed (Fischer EBT 190: 15-17).
Plaintiff commenced this action by filing his summons and verified complaint on September 20, 2005. The verified complaint alleges false arrest, malicious prosecution, gross negligence, abuse of process, intentional infliction of emotional harm, defamation, libel and slander per se, punitive damages, assault, and battery. Issue was joined and discovery has been undertaken in both this action and the related action brought by Linville against Henriques and others. As noted above, the two matters have been joined for discovery and trial.
Linville commenced her civil action on December 10, 2004, alleging negligence, assault, and battery.
Defendant timely moves for summary judgment and dismissal of the complaint in its entirety based on the running of the statute of limitations as to the claims alleging intentional torts, and based on failure to state a cause of action as concerns all of the claims, whether or not dismissed on statute of limitations grounds. Plaintiff argues that the statute of limitations has not run, because defendant is a non-New York State resident and therefore the matter has been stayed under CPLR 207. He also argues that his claims are meritorious and that there are questions of fact requiring a trial.
Analysis
Summary judgment is proper when there are no issues of triable fact ( Alvarez v Prospect Hospital, 68 NY2d 320, 324). Issue finding rather than issue determination is its function ( Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395). To prevail on a summary judgment motion, the moving party must produce evidentiary proof in admissible form sufficient to warrant the direction of summary judgment in his or her favor ( GTF Mtkg, Inc. v Colonial Aluminum Sales, Inc., 66 NY2d 965, 967). Once this burden is met, the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial ( Kosson v Algaze, 84 NY2d 1019). The evidence will be construed in the light most favorable to the one moved against ( Corvino v Mount Pleasant Centr. Sch. Dist., 305 AD2d 364, 364 [2d Dept 2003]; Bielat v Montrose, 272 AD2d 251, 251 [1st Dept. 2000]).
Pursuant to CPLR 3211 (e), the defense of statute of limitations must be asserted in a pre-answer motion to dismiss the complaint, or in the responsive pleading, and if not it is deemed waived. Defendant's first affirmative defense alleges that the intentional torts alleged are barred by the statute of limitations (Mot. Ex. B, Ver. Ans. ¶ 45).
Claims alleging the intentional torts of assault, battery, false imprisonment, malicious prosecution, and libel or slander, must be commenced within one year of accrual (CPLR 215). Defendant argues that here, where plaintiff did not commence his action until September 20, 2005, the claims alleging intentional torts are untimely asserted. Plaintiff argues that although the date of accrual of certain of these claims is the date of his arrest, December 13 or December 14, 2005, the statute of limitations has been tolled pursuant to CPLR 207, because defendant Linville is an out-of-state resident, and she must prove her presence in New York in order to void the toll (see, Childs v Brandon, 60 NY2d 927, 929 [borrowing Alabama's Statute of Limitations and its tolling statute]). He therefore contends that the commencement of his action by filing on September 20, 2005, was not untimely.
Contrary to plaintiff's argument, CPLR 302 (a) (2) governs this matter because it provides that, with the exception of defamation, where the alleged tortious conduct occurred in New York, the court has long-arm jurisdiction over an out-of-state resident where service of process can be effected on that non-resident through any of the modes permitted in New York (CPLR 302 [a] [2]). An examination of the case file in the County Clerk's office reveals that plaintiff served defendant by conspicuous place service at her home in North Carolina on January 9, 2006. Plaintiff has not alleged that he had been actually unable to serve her at an earlier date with one of the statutory methods available to him under the CPLR, and therefore has not shown that the long-arm statute does not apply to this litigation. Accordingly, with the exception of the claims sounding in defamation, there was no tolling of the statute for plaintiff's claims. Thus, the 1st cause of action sounding in false arrest must be dismissed, as a claim for false arrest accrues when the plaintiff is released from custody or confinement ( Nunez v City of N.Y., 307 AD2d 218, 219 (1st Dept. 2003). Plaintiff testified that he was arrested late at night on December 13 or 14, and arraigned and released on his own recognizance on December 14, 2003 (Mot. Ex. H, EBT of Graig Henriques, Sep. 11, 2009 [hereinafter Henriques EBT], 119, 120). Similarly, the 10th, 11th, and 12th causes of action sounding in assault and battery, are dismissed on the same ground, as these alleged intentional torts occurred on December 13, 2003, more than a year before plaintiff commenced the instant action on September 21, 2004.
According to the affidavit of service, dated January 10, 2006, the process server had attempted service on nine previous occasions, at differing times of the day and evening, and had once seen a woman through the window who would not answer the door.
The 2nd cause of action alleges malicious prosecution. This is in fact a misnomer, as claims of malicious prosecution concern an arrest made pursuant to a warrant ( Broughton v State of N.Y., 37 NY2d 451, 456, cert. denied 423 U.S. 929). Here, plaintiff was arrested based on the police interview with plaintiff and with defendant Linville and Fischer. Plaintiff's claim therefore is for false imprisonment, not malicious prosecution ( see, id.). A claim for false imprisonment accrues as of the date of the release from confinement ( Jackson v Police Dept. of N.Y., 119 AD2d 551, 552 [2d Dept 1972]; Caminito v City of City of N.Y., 25 AD2d 848, 849 [2d Dept. 1966], affd 19 NY2d 931). The 2nd cause of action is dismissed.
The 3rd cause of action alleges gross negligence by defendant in accusing plaintiff of criminal acts and "forc[ing]" him to submit to be arrested falsely and be maliciously prosecuted, and endure humiliation against his will. Where a plaintiff seeks damages for an injury resulting from a wrongful arrest and prosecution, he or she may not recover under broad general principles of negligence, but must proceed by way of the traditional remedies of false arrest and malicious prosecution ( see, Santoro v Town of Smithtown, 40 AD3d 736, 738 [2d Dept. 2007]; Galatowitsch v New York City Gay Lesbian Anti-Violence Proj., Inc., 1 AD3d 137 [1st Dept. 2003], l v denied 1 NY3d 507). As stated in Galatowitsch, a plaintiff "may not circumvent the requirements and short statute of limitations . . . by labeling [his] claims as ones for 'negligence'" ( 1 AD3d 137). Accordingly, the 3d cause of action is dismissed.
The 4th cause of action alleges abuse of process. Abuse of process in its "broadest sense" is the misuse or perversion of regularly issued legal process for a purpose not justified by the nature of the process ( see, Board of Educ. of Farmingdale Union Free School Dist. v Farmingdale Classroom Teachers Assn., Inc., Local 1998 AFT AFL-CIO, 38 NY2d 397, 400). The plaintiff must allege and ultimately prove (1) regularly issued legal process, compelling performance or forbearance of some act; (2) the person activating the process intended to do harm without excuse or justification, (3) and the person activating the process sought to use the process in a manner to obtain a collateral objective outside the legitimate ends of the process ( id., at 403).
A claim sounding in abuse of process is sometimes held to accrue at the initiation of a criminal proceeding and sometimes when the proceeding terminates ( see, e.g., Beninati v Nicotra, 239 AD2d 242, 242-243 [1st Dept. 1997]). As noted above, the criminal case was dismissed for failure to prosecute on September 21, 2004, and thus the commencement of this action on September 20, 2005, falls within the outside limit of the one-year period for asserting this claim ( see, Dobies v Brefka, 263 AD2d 721, 723 [3d Dept. 1999], lv dismissed 95 NY2d 931 [2000], holding that where plaintiff alleged several causes of action arising out of defendants' filing of complaints involving criminal charges or child abuse allegations which were later dismissed or determined to be unfounded, his claim for abuse of process was not actionable until the criminal proceeding was concluded, since only then was he able to allege that he suffered an injury without justification]). It bears noting that defendant does not set forth arguments to support this particular branch of her motion. Her failure to make a prima facie showing of entitlement to summary judgment requires denial of this branch of her motion ( see, Winegrad v New York Univ. Med Ctr., 64 Y2d 851, 853 [1985]). Accordingly, the branch of the motion which seeks summary judgment on the 4th cause of action must be denid.
The 5th and 6th causes of action allege intentional infliction of emotional distress. The tort has four elements: extreme and outrageous conduct, intent to cause or disregard of a substantial probability of causing severe emotional distress, a causal connection between the conduct and injury, and severe emotional distress ( Howell v New York Post Co., Inc., 81 NY2d 115, 122). It accrues when the plaintiff has suffered the emotional distress ( Schultes v Kane, 50 AD3d 1277, 1278 [3d Dept. 2008]). Defendant argues that plaintiff's claims must be dismissed as he offers no medical evidence in support of his claims that he suffered severe emotional distress, as required by case law ( see Walentas v Johnes, 257 AD2d 352, 353 [1st Dept.], lv dismissed 93 NY2d 958). Plaintiff's opposition offers only conclusory allegations and is insufficient to raise questions of fact that would require a trial. Accordingly, the 5th and 6th causes of action should be dismissed.
The 7th cause of action alleges defamation, and the 8th cause of action alleges libel and slander per se. As noted above, claims sounding in defamation, an intentional tort which includes both slander and libel, have a one-year statute of limitations which is tolled pursuant to CPLR 302 (a) (2), when, as here, the defendant is a non-resident of New York State. Plaintiff has not established that he served defendant with process in New York State so that jurisdiction has been obtained over her as to these causes of action. Defendant's second affirmative defense pleads the lack of jurisdiction based on improper service (Mot. Ex. B, Ver. Ans. ¶ 46). However, where a defendant makes an objection based on lack of personal jurisdiction because of improper service, the objection is deemed waived unless he or she moves to dismiss within 60 days after serving the answer (CPLR 3211 [e]). Thus, it must be found that the statute of limitations has not run as to these claims.
Defamation is the making of a false statement which tends to "expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons" ( Rinaldi v Holt, Rinehart Winston, Inc., 42 NY2d 369, 379). Libel is the publication of a statement about an individual that is both false and defamatory ( Brian v Richardson, 87 NY2d 46, 51). Slander is defamatory statements said aloud ( see, Cole Fischer Rogow, Inc. v Carl Ally, Inc., 29 AD2d 423, 438 [1st Dept. 1968], affd 25 NY2d 943 [1969]). Slander per se requires a showing of special damages, meaning the loss of something involving economic or pecuniary value, unless the defamation consists of allegations that a plaintiff has committed a crime, as well as certain other exceptions ( Matherson v Marchello, 100 AD2d 233, 235, 236 [2d Dept. 1984]; see Kaye v Prisma Corp., 172 AD2d 287 [1st Dept. 1991]).
Under CPLR 3016 (a), the particular words complained of shall be set forth in the complaint. The complaint must allege the time, place, and manner of the false statement and specify to whom it was made ( Dillon v City of N. Y., 261 AD2d 34, 38 [1st Dept. 1999]). Here, the complaint alleges that the totality of allegations set forth in the misdemeanor complaint as recorded by the police officer from the words of defendant Linville, were false and defamatory, injured his reputation, impaired his business, and darkened his moral standing (Mot. Ver. Compl. ¶¶ 32-38).
Defendant argues that the facts and circumstances, namely her allegations, the incident as recorded on the security camera, and that she suffered injuries requiring medical attention after an "altercation" with plaintiff, "clearly establish" that her statements to the investigating police officer were made in good faith and without malice (Def. Memo of Law, Pt. III). She maintains that plaintiff was the instigator. Plaintiff disputes her characterization of the incident, and alleges that he tried to avoid interacting with her, reacted defensively when she approached him, and did not assault her or intentionally cause her injury. The surveillance DVD, in the court's view, offers some support to plaintiff's version of the facts, although it does not unambiguously establish what happened.
Defendant also argues that statements made to a police officer or to an assistant district attorney are accorded a qualified privilege, which a plaintiff can negate only by a showing of malice ( Toker v Pollak, 44 NY2d 211, 219). The common-law standard of malice means "spite or ill will" ( Liberman v Gelstein, 80 NY2d 429, 438, citing Shapiro v Health Ins. Plan of Greater N.Y., 7 NY 2d 56, 61 [1959] ["By actual malice is meant personal spite or ill will, or culpable recklessness or negligence"]). The existence of malice is a question of fact for the jury where there is evidence warranting its submission to a jury, with the burden of proof being on the plaintiff ( Stukuls v State of N. Y., 42 NY2d 272, 279 [citation and quotation deleted). Defendant contends that there is nothing to show that she acted with malice, pointing out that she had never before met the plaintiff.
However, although the totality of the evidence, including the security tape and the medical records, does not establish defendant's claim that she spoke without recklessness or negligence such as to suggest malice, defendant's motion is nevertheless granted as to these two causes of action because the express mandate of CPLR 3016 (a) requiring the exact words to be included in the complaint, has not been satisfied. Therefore, the 7th and 8th causes of action are dismissed.
The 9th cause of action alleges punitive damages and must be dismissed as there is no separate cause of action sounding in punitive damages ( see, Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 616; Park v YMCA of Greater New York Flushing, 17 AD3d 333 [2d Dept. 2005]). Moreover, the conduct alleged does not rise to the level or outrageous or egregious conduct which would warrant the extraordinary remedy of punitive damages.
It is therefore,
ORDERED that defendant's motion for summary judgment is granted as to the 1st, 2d, 3rd, 5th, 6th, 7th, 8th, and 9th causes of action, which are severed and dismissed, and the motion is denied as to remaining 4th cause of action, which shall continue under this index number; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly; and it is further
ORDERED that parties are to appear as previously scheduled for Mediation on January 24, 2011.
This constitutes the decision and order of the court.