Opinion
10259/06.
Decided January 30, 2007.
Upon the foregoing papers, defendants Admiral Insurance Brokerage Corp. (Admiral) and Peter Evangelista (Evangelista) move, pursuant to CPLR 3211 (a) (7), for an order dismissing plaintiffs' complaint on the ground that it fails to state a cause of action, and pursuant to CPLR 3211 (a) (1), for an order dismissing their complaint based upon documentary evidence; and (2) plaintiffs Stephen Oszustowicz (Oszustowicz) and Francine Oszustowicz cross-move, pursuant to CPLR 3025(b), for an order granting plaintiffs leave to serve an amended complaint amending the fourth cause of action .
BACKGROUND
Admiral is an insurance brokerage company, owned by Evangelista, who also serves as its president. Commencing in or about July, 2002, Admiral employed Oszustowicz as an insurance representative and salesman. His responsibilities included issuing certificates to Admiral's clients who purchased insurance policies from Admiral.
In early 2005, Evangelista purportedly learned that Oszustowicz had issued insurance certificates from Admiral to various companies which did not, in fact, have valid insurance policies procured through Admiral . Evangelista alleges that the certificates issued by Oszustowicz contained false information, such as fictitious insurance policy numbers and issuance notations.
By letter to American Home Assurance dated June 28, 2005, the State of New York Insurance Department advised that it was conducting an investigation into the validity of the Certificates of Liability Insurance that were issued to Emergency Electrical and S.J.V. Plumbing. According to Evangelista, such certificates are only issued by Admiral when an insurance policy was purchased through Admiral, and said policy remained active.
Concerned about Admiral's potential exposure to liability due to its clients' reliance on invalid certificates of insurance, Evangelista conducted an investigation, purportedly learning that Oszustowicz had, in fact, signed numerous certificates of this nature. As a result, he: (1) terminated Oszustowicz's employment with Admiral; and (2) contacted the 63rd Precinct of the New York City Police Department (NYPD), acting as a result of what he claims was a good faith belief that criminal activity had occurred. Detective Alan King was assigned to handle the investigation.
Evangelista identifies a number of purportedly false certificates prepared by Oszustowicz. In addition to the fraudulent certificates issued by Oszustowicz to J.E. Top Circuit, Inc. (Top Circuit), Evangelista indicates that he furnished certificates issued to S.J.V. Plumbing (S.J.V.) and Emergency Electrical Contracting, Inc. (Emergency Electrical) to Detective King for his review. As a result, on April 19, 2005, Detective King arrested Oszustowicz at the 63rd Precinct. Oszustowicz was charged with the crimes of criminal possession of a forged instrument in the third degree and criminal possession of a fraudulent instrument in the second degree. On that same date, Evangelista purportedly appeared at the 63rd Precinct to verify that Oszustowicz was the correct individual who was arrested.
The Charge Sheet, dated April 20, 2005, states: "(t)he defendant did issue certificates of liability insurance and workers compensation insurance to JE Top Circuit when such insurance did not exist."
As alleged in his verified complaint, Oszustowicz was transferred from the 63rd Precinct to Central Booking located in the Criminal Court building, 120 Schermerhorn Street, in Brooklyn, where he was confined until 1:00 a.m. on April 21, 2005, for a period in excess of 31 hours.
Plaintiff's allegation, in paragraph 13 of his verified complaint that he was confined until April 21, 2006 is obviously a typographical error.
Subsequently, Oszustowicz's matter was referred to the District Attorney of Kings County for prosecution. However, the District Attorney failed to take any further action, and the case was never prosecuted.
Plaintiffs commenced the instant lawsuit by filing and service of a summons and verified complaint dated March 28, 2006. On behalf of Oszustowicz, the complaint alleges causes of action for: (1) false arrest and false imprisonment; (2) egregious and gross misconduct; (3) humiliation and loss of integrity; and (4) slander. A fifth cause of action for loss of services is alleged, derivatively, by plaintiff Francine Oszustowicz.
CONTENTIONS
In support of their motion to dismiss, defendants provide no affidavits, instead annexing documents as exhibits which are claimed to be conclusive evidence which dispose of all causes of action asserted by plaintiffs .
Plaintiffs, in opposition to their motion and in support of their cross motion, challenge the probative value of defendants' submission. Specifically referring to the certificate issued on behalf of S.J.V. Plumbing, plaintiffs contend that the policy issued to said insured was active at the time said certificate was issued, although subsequently S.J.V. Plumbing's check was returned unpaid. They also argue that the certificates of insurance issued by Oszustowicz on behalf of J.E. Top Circuit were validly issued. Plaintiffs assert that the signatures on the certificate issued to Emergency Electrical, which purport to be those of Oszustowicz, are, in fact, forgeries, and aver that the Emergency Electrical certificates did not underly any of the charges filed against Oszustowicz in the criminal proceeding.
Plaintiffs go on to submit that it is indisputable that Evangelista, on his own behalf and on behalf of Admiral, falsely charged Oszustowicz with two crimes, and, in view of his arrest and imprisonment, that their complaint states a valid cause of action.
In support of that branch of their cross motion for leave to amend their complaint, plaintiffs annex several statements, both sworn and unsworn, from individuals who purport to be clients of Oszustowicz, alleging that Evangelista contacted them and made certain false, untrue and derogatory statements concerning Oszustowicz.
In reply, defendants, through Evangelista, contend that they had a good faith basis for reporting Oszustowicz's activity to the police. They assert that plaintiffs' reliance on, and submission of, a declaration page to support their contention that the policy issued by Tudor Insurance Company to J.E. Top Circuit is misplaced, for two reasons: (1) a declaration page is not proof that a policy is active, rather, it simply describes a type of policy and the premium for said coverage; and (2) the declaration page offered by plaintiffs identifies a policy number different from that set forth on the certificate of insurance issued by plaintiff. They further note that the certificate of insurance for J.E. Top Circuit references workers compensation and automobile policies, neither of which was issued by Admiral. Arguing that since plaintiffs do not deny that Oszustowicz executed the certificate of insurance to J.E. Top Circuit, and as the documents provided for the purpose of defeating defendants' motion to dismiss further supports defendants' position, defendants contend that plaintiffs fail to demonstrate that Evangelista did not act in good faith.
Similarly, defendants refer to a workers compensation policy issued to J.E. Top Circuit, and assert that the State Insurance Fund document provided by plaintiffs fails to identify that Admiral was the broker of record who provided said policy. Defendants allege that had Admiral been the broker of record, its name would appear on the top portion of the document.
Defendants go on to charge that: (1) U.S. Underwriters canceled S.J.V. Plumbing's general liability policy, effective September 9, 2004, but that plaintiff fraudlently created a policy number and included same in the October 19, 2004 certificate; and (2) AIG cancelled S.J.V. Plumbing's umbrella policy on September 9, 2004, Oszustowicz in fact subsequently elected to issue a certificate indicating that such a policy was in effect. They challenge plaintiffs' assertion that Oszustowicz was not responsible for issuing certificates to Emergency Electrical, and provide fax cover sheets which claimedly demonstrate that Emergency Electrical regularly received certificates from Oszustowicz.
DISCUSSION
Defendants' motion to dismiss pursuant to 3211 (a) (1)
In order to prevail on a motion to dismiss based on documentary evidence pursuant to CPLR 3211 (a) (1), the documents relied upon must definitively dispose of plaintiff's claim ( see Bronxville Knolls v Webster Town Center, 221 AD2d 248). A defendant must show that the documentary evidence upon which the motion is predicated resolves all factual issues as a matter of law ( Unadilla Silo Co. v Ernst Young, 234 AD2d 754 [emphasis added]). In the instant motion, defendants have failed to demonstrate that the documents upon which they rely dispose of all factual issues. Accordingly, the court denies the motion as asserted under said subsection. Defendants' motion to dismiss pursuant to 3211 (a) (7)
On a motion to dismiss made pursuant to CPLR 3211(a)(7), "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law, a motion for dismissal will fail" ( Guggenheimer v Ginzburg, 43 NY2d 268, 275; see also Gaidon v Guardian Life Ins. Co. of America, 94 NY2d 330; In re Loukoumi, Inc., 285 AD2d 595, 596). Further, "[w]hen evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, again dismissal should not eventuate" ( Guggenheimer, 43 NY2d at 275; Doria v Masucci, 230 AD2d 764). Finally, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint (see Rovello v Orofino Realty Co., 40 NY2d 633, 635; Well v Rambam, 300 AD2d 580).
To establish a cause of action for false arrest/false imprisonment, the plaintiff must show that: (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged (see Broughton v State, 37 NY2d 451, 456; Secard v Dept. of Social Services, 204 AD2d 425). The great weight of authority, including New York, recognizes the rule that neither actual malice nor want of probable cause is an essential element of an action for false imprisonment ( Broughton, 37 NY2d at 457). In the instant matter, it is undisputed that plaintiff was arrested and detained by members of the New York City Police Department, not by Evangelista, who only provided information to Detective King.
Merely furnishing information to legal authorities that results in the arrest of an individual, without more, does not give rise to liability ( see Chapo v Premier Liquor Corp., 259 AD2d 1050, 1051, quoting Cobb v Willis, 208 AD2d 1155, 1156 ["(t)here is no liability for merely giving information to legal authorities, who are left entirely free to use their own judgment in effecting an arrest, or in swearing out a criminal complaint so that an arrest is legally authorized"]). Rather, "(t)o sustain a cause of action for false arrest and false imprisonment [against a civilian complainant], a plaintiff must show that the defendant took an active role in the [arrest] of the plaintiff, such as giving advice and encouragement or importuning the authorities to act, and that the defendant intended to confine the plaintiff (internal citations omitted)" ( Lowmack v Eckard Corp., 303 AD2d 998, quoting Celnick v Freitag, 242 AD2d 436, 437). Plaintiffs' complaint fails to set forth any allegations suggesting that defendants did, in fact, engage in such a level of conduct which the law requires in order to state a cognizable cause of action for false arrest or false imprisonment.
Thus having failed to allege that defendants actually arrested and detained Oszustowicz, plaintiffs fail to state a cause of action for false arrest or false imprisonment, and accordingly, the court grants that branch of defendants' motion for dismissal of said cause of action ( see Secard, 259 AD2d at 426).
Plaintiffs' second and third causes of action, alleging respective claims of "egregious and gross misconduct" and damages resulting therefrom, are dismissed, as neither states a cognizable cause of action. In order to withstand a motion to dismiss under CPLR 3211(a)(7), a complaint, while to be given liberal interpretation, must allege the material elements of a cause of action ( see Kohler v Ford Motor Company, 93 AD2d 207). Plaintiffs second and third causes of action clearly fail to do so.
Plaintiffs' original complaint fails to state a cause of action for slander. CPLR 3016 (a) provides that "[i]n an action for libel or slander, the particular words complained of shall be set forth in the complaint, but their application to the plaintiff may be stated generally." Indeed, it is well settled that "[t]he complaint in an action for slander is required to state in haec verba the particular defamatory words claimed to have been uttered by defendants. This requirement is strictly enforced and the exact words must be set forth. Any qualification in the pleading thereof by use of the words 'to the effect,' 'substantially,' or words of similar import generally renders the complaint defective" ( Gardner v Alexander Rent-A-Car, Inc., 28 AD2d 667; see also Laiken v American Bank Trust Co., 34 AD2d 514). Dismissal is required when the complaint paraphrases, rather than pleads with particularity, the actual words used, "such that the actual words are not evident from the face of the complaint" ( Murganti v Weber, 248 AD2d 208; see also Belvision, Inc. v M G Electronics, Inc., 134 AD2d 313, 314 ["(t)he vague and conclusory allegations that the defendants have made false statements in the electronics jobbers' community which negatively reflect on the plaintiff's reliability and solvency, do not comport with the minimum requirements of the statute"]). Plaintiff's fourth cause of action, which alleges that defendants contacted many of plaintiff's (presumably Oszustowicz's) business associates and told them that he was guilty of certain crimes provides no specificity with regard to the particular words allegedly spoken by defendants, or the time, place and manner of the alleged statements. Consequently, it falls short of that which is required to state a cause of action for slander, and dismissal is thus mandated under CPLR 3211 (a) (7).
"In these same words; verbatim" (Black's Law Dictionary 786 [7th Ed 1999])
However, it is beyond dispute that permission to amend pleadings should be freely given (CPLR 3025 [b]; see generally Edenwald Contracting Co. v City of New York, 60 NY2d 957, 959). Accordingly, such leave shall be granted, provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit ( see Santori v Met Life , 11 AD3d 597 , 598, citing Ortega v Bisogno Meyerson , 2 AD3d 607 ; AYW Networks v Teleport Communications Group, 309 AD2d 724, appeal dismissed 1 NY3d 566; Leszczynski v Kelly McGlynn, 281 AD2d 519). Defendants, who did not submit any opposition to plaintiffs' cross motion for leave to serve an amended complaint in order to rectify the deficiencies in their fourth cause of action, cannot, in any event, claim surprise or prejudice by the court's granting of such relief. Moreover, such cause of action supports plaintiff Francine Oszustowicz's derivative cause of action for loss of services. Accordingly, plaintiffs are directed to serve an amended complaint, not inconsistent with the provisions of this Decision and Order, within 30 days of date of notice of entry hereof.