Opinion
March 29, 2000.
Appeal from Order of Supreme Court, Monroe County, Lunn, J. — Summary Judgment.
PRESENT: PIGOTT, JR., P. J., GREEN, PINE AND HURLBUTT, JJ.
Order unanimously affirmed with costs.
Memorandum:
Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint alleging false arrest. In July 1992 a loss prevention specialist employed by defendant observed plaintiff place two packages of meat in her cart and attempt to leave the store without paying for them. Plaintiff was arrested, but the charges were later dismissed in the interest of justice. "`A cause of action to recover damages for false arrest does not lie if the defendant can establish the existence of probable cause for the plaintiff's arrest'" ( Moscatelli v. City of Middletown , 252 A.D.2d 547 , quoting Kracht v. Town of Newburgh , 245 A.D.2d 424, 425 ). The complaint alleged that plaintiff was stopped as she was about to leave the store, but there is no requirement that a shoplifter leave the store to be guilty of larceny ( see, People v. Olivo , 52 N.Y.2d 309, 318 ). Defendant established probable cause for the arrest as a matter of law ( see, People v. Vega , 197 A.D.2d 552, lv denied 82 N.Y.2d 904), and plaintiff failed to raise an issue of fact, entitling defendant to judgment as a matter of law ( see, Jacques v. Sears, Roebuck Co. , 30 N.Y.2d 466, 474; Rasheed v. New Star Fashions , 262 A.D.2d 263 ).
The EBT transcript was not submitted, and the hearsay affidavit of plaintiff's attorney submitted in opposition to the motion is insufficient to defeat the motion ( see, Juarez v. Wavecrest Mgt. Team , 88 N.Y.2d 628, 648 ; see also, Zuckerman v. City of New York , 49 N.Y.2d 557, 563 ).
Plaintiff's contention that summary judgment was premature because discovery was incomplete is without merit. Plaintiff failed to "demonstrate how further discovery might reveal material facts in the movant's exclusive knowledge" ( Scofield v. Trustees of Union Coll ., 267 A.D.2d 651, 652; [decided Dec. 9, 1999]; cf., Hammond v. Alekna Constr ., 267 A.D.2d 1027 [decided Dec. 30, 1999]). In view of our determination that defendant's motion for summary judgment was properly granted, we need not reach plaintiff's contention that the affirmative defenses should have been dismissed ( see, Hill v. Speckard , 209 A.D.2d 1007, 1008, lv dismissed 85 N.Y.2d 1032; see also, Padgett v. State of New York , 163 A.D.2d 914, 915, lv denied 76 N.Y.2d 711). The court did not abuse its discretion in denying plaintiff's motion for recusal ( see generally, Matter of Card v. Siragusa , 214 A.D.2d 1022, 1023 ), nor did the court abuse its discretion in supervising the discovery process ( see, Kern v. City of Rochester [appeal No. 1], 267 A.D.2d 1026 [decided Dec. 30, 1999]; cf., Gadley v. U.S. Sugar Co. , 259 A.D.2d 1041).