From Casetext: Smarter Legal Research

Richardson v. New York University

Appellate Division of the Supreme Court of New York, First Department
Mar 17, 1994
202 A.D.2d 295 (N.Y. App. Div. 1994)

Summary

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 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.

Summary of this case from SADA v. KOHL'S DEPT. STORES, INC.

Opinion

March 17, 1994

Appeal from the Supreme Court, New York County (Beverly S. Cohen, J.).


This is an action for compensatory and punitive damages for false arrest, malicious prosecution, and negligent employment. Plaintiff was allegedly observed by defendant Beckham, a store detective in defendant New York University's book store, taking a display laptop computer and carrying it under his jacket, up from the basement and past the security gates, to the revolving exit door, where he was apprehended and where he initially refused to open his jacket. Plaintiff was then taken to a room in the store, where, after a wait of thirty-five minutes, according to defendants, or two hours according to plaintiff, he was placed under arrest by the New York City police. The trial court denied plaintiff's motion to dismiss the criminal case against plaintiff and found that the People had made out a prima facie case. After trial, however, it acquitted plaintiff on both counts, petit larceny and possession of stolen property, noting that the prosecution had failed to offer in evidence either the computer or the jacket and had not proved plaintiff's guilt beyond a reasonable doubt.

Section 218 Gen. Bus. of the General Business Law gives a retail merchant a defense in an action for false arrest and imprisonment for its detention of a suspect shoplifter if reasonable even when the criminal actions are dismissed (Jacques v. Sears, Roebuck Co., 30 N.Y.2d 466, 469, 472). Since no preliminary hearing was held in the criminal case, the testimony elicited in the criminal trial and the rulings of the court there on the sufficiency of the People's prima facie case must be looked to (Gebbie v. Gertz Div., 94 A.D.2d 165, 174). The court's refusal to dismiss the criminal action, after hearing the testimony of the store detective, supports the conclusion that there were reasonable grounds for the arrest of plaintiff. The defendants having made a showing of entitlement to summary judgment, therefore, plaintiff was required to produce evidentiary proof, beyond mere conclusory assertions, to substantiate his claim (National Bank v. Alizio, 103 A.D.2d 690, 691, affd 65 N.Y.2d 788). Plaintiff's short affidavit in opposition here did no more than repeat his claim that he did not intend to steal the computer.

Since malicious prosecution similarly requires the absence of probable cause and a showing of actual malice (Broughton v. State of New York, 37 N.Y.2d 451, 457, cert denied sub nom. Schanbarger v. Kellogg, 423 U.S. 929), that count too should have been dismissed. Plaintiff's allegations of malice on the part of the store detective are pure speculation (see, Trails W. v. Wolff, 32 N.Y.2d 207, 221).

Similarly, plaintiff makes no showing of deficient training or supervision. Conclusory allegations do not establish a question of fact (see, Barr v. County of Albany, 50 N.Y.2d 247, 258).

With the failure of the three causes of action, the cross-motion to amend the complaint to assert a respondeat superior theory becomes moot.

Concur — Carro, J.P., Wallach, Asch, Nardelli and Williams, JJ.


Summaries of

Richardson v. New York University

Appellate Division of the Supreme Court of New York, First Department
Mar 17, 1994
202 A.D.2d 295 (N.Y. App. Div. 1994)

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 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.

Summary of this case from SADA v. KOHL'S DEPT. STORES, INC.
Case details for

Richardson v. New York University

Case Details

Full title:MICHAEL RICHARDSON, Respondent, v. NEW YORK UNIVERSITY et al., Appellants

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Mar 17, 1994

Citations

202 A.D.2d 295 (N.Y. App. Div. 1994)
609 N.Y.S.2d 180

Citing Cases

Cleary v. Bloomingdale's, Inc.

Defendant raises section 218 of the General Business Law (GBL § 218) as a defense to the malicious…

SADA v. KOHL'S DEPT. STORES, INC.

Contrary to Defendant's contentions, General Business Law § 218 does not provide an affirmative defense for…