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Slatkin v. Litho

Appellate Division of the Supreme Court of New York, First Department
Oct 12, 2006
33 A.D.3d 421 (N.Y. App. Div. 2006)

Summary

affirming dismissal of an IIED action because "threatening [the plaintiff's] arrest and criminal prosecution instigation of the . . . plaintiff's arrest by means of false statements . . . is not so outrageous as to be utterly intolerable"

Summary of this case from Reynolds v. Vill. of Chittenango

Opinion

No. 9195.

October 12, 2006.

Order, Supreme Court, New York County (Karen S. Smith, J.), entered November 28, 2005, which, insofar as appealed from as limited by the briefs, granted defendants' motion for summary judgment to the extent of dismissing plaintiffs' causes of action for tortious interference with prospective economic advantage and intentional infliction of emotional distress, and denied the motion with respect to the causes of action for false arrest/imprisonment and malicious prosecution, unanimously modified, on the law, to grant summary judgment dismissing the causes of action for false arrest/imprisonment and malicious prosecution, and otherwise affirmed, with costs in favor of defendants. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

Before: Tom, J.P., Marlow, Sullivan, McGuire and Malone, JJ.


The cause of action for tortious interference with prospective economic advantage, alleging that defendants manufacturers committed various torts with the motive of eliminating plaintiffs, a corporation and its principal, as broker and securing plaintiffs' customers directly, was properly dismissed upon a record establishing that plaintiffs' customers stopped doing business with plaintiffs at least in part because they were no longer able to contact them. No issue of fact exists as to whether plaintiffs would have secured future business from the customers they lost "but for" defendant's correspondence with the customers disparaging plaintiffs' credit-worthiness and business ethics ( see Mandelblatt v Devon Stores, 132 AD2d 162, 169 , quoting Union Car Adv. Co. v Collier, 263 NY 386, 401 [1934]). The cause of action for intentional infliction of emotional distress was properly dismissed as the conduct alleged — faxes and phone calls, including to the individual plaintiff's parents, threatening his arrest and criminal prosecution; instigation of the individual plaintiff's arrest by means of false statements to the police concerning plaintiffs' indebted-ness to defendants — is not so outrageous as to be utterly intolerable ( see Brown v Sears Roebuck Co., 297 AD2d 205, 212).

With respect to the cross appeal, the cause of action for false arrest/imprisonment should have been dismissed in view of the uncontroverted evidence, supplied by the testimony of the investigating police officer, that the alleged false information defendants gave him did not influence his decision to arrest the individual plaintiff ( see Du Chateau v Metro-North Commuter R.R. Co., 253 AD2d 128, 132-133). The cause of action for malicious prosecution should have been dismissed in view of uncontroverted evidence the final disposition of the criminal proceeding against the individual plaintiff did not involve the merits and did not indicate his innocence. Rather, the criminal proceeding was dismissed because the District Attorney advised the criminal court that while there was probable cause for the arrest, there was legally insufficient evidence to support the charge of larceny ( see MacFawn v Kresler, 88 NY2d 859, 860).


Summaries of

Slatkin v. Litho

Appellate Division of the Supreme Court of New York, First Department
Oct 12, 2006
33 A.D.3d 421 (N.Y. App. Div. 2006)

affirming dismissal of an IIED action because "threatening [the plaintiff's] arrest and criminal prosecution instigation of the . . . plaintiff's arrest by means of false statements . . . is not so outrageous as to be utterly intolerable"

Summary of this case from Reynolds v. Vill. of Chittenango

sending faxes and calling plaintiff threatening arrest if a debt was not paid and securing plaintiff's arrest by means of false statements not sufficiently outrageous

Summary of this case from BAEZ v. JETBLUE AIRWAYS CORPORATION

threatening arrest and criminal prosecution, instigation of arrest by alleged false statements to police insufficient

Summary of this case from Galasso Langione Botter, LLP v. Liotti
Case details for

Slatkin v. Litho

Case Details

Full title:ROBERT SLATKIN et al., Appellants-Respondents, v. LANCER LITHO PACKAGING…

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

Date published: Oct 12, 2006

Citations

33 A.D.3d 421 (N.Y. App. Div. 2006)
2006 N.Y. Slip Op. 7290
822 N.Y.S.2d 507

Citing Cases

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The defendant must have affirmatively induced the officer to act, such as taking an active part in the arrest…

BAEZ v. JETBLUE AIRWAYS CORPORATION

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