Opinion
No. 300547/13.
12-22-2015
Mike SOSA and Lixdania Perez, Plaintiff(s), v. The CITY OF NEW YORK, Manish Sharma, Danny Bermeo, and Dervent Williams, Defendant(s).
Sivin & Miller, Counsel for Plaintiff. New York City Law Department, Counsel for Defendants.
Sivin & Miller, Counsel for Plaintiff.
New York City Law Department, Counsel for Defendants.
MITCHELL J. DANZIGER, J.
In this action for alleged false arrest, false imprisonment, malicious prosecution, and negligence in the hiring, training, and retention of police officers, defendants move seeking an order pursuant to CPLR § 3212(1) granting defendants THE CITY OF NEW YORK (the City) and defendant MANISH SHARMA (Sharma) summary judgment with respect to plaintiffs' state law claim for malicious prosecution on grounds there was never any cognizable criminal proceeding instituted against plaintiffs; (2) granting the City summary judgment with respect to plaintiffs' state law claim for negligence by the City in its hiring, training and retention of Sharma on grounds that the City, in interposing an answer for Sharma has conceded that at all relevant times, he was acting under the scope of his employment with the City; (3) granting defendants summary judgment with respect to plaintiffs' claims pursuant to 42 USC § 1983 insofar as premised on their alleged malicious prosecution of plaintiffs on the same ground identified above; (4) granting the City summary judgment with respect plaintiffs' claim pursuant to 42 USC § 1983 insofar as premised on the City's negligence in hiring, training and retention of the individually named police officers on the same ground identified above . The City also moves for an order pursuant to CPLR § 3211(a)(7) dismissing plaintiffs' claim against the City pursuant to 42 USC § 1983 insofar as the same is premised on an alleged municipal custom and practice alleged to have caused plaintiffs' injury. With respect to the foregoing claim, the City argues that the complaint fails to state a cause of action. Plaintiffs oppose the instant motion, in part, to the extent it seeks to dismissal of plaintiffs' state claim against the City and Sharma for malicious prosecution and their identical claim against all defendants pursuant to 42 USC § 1983. With respect to the foregoing claims, plaintiffs aver that insofar as they are premised on alleged malicious prosecution, defendants did in fact initiate a criminal proceeding against them as matter of prevailing law.
While defendants seek summary judgment with respect to plaintiffs' alleged claim pursuant to 42 USC § 1983 insofar as premised on the City's alleged negligence in the hiring, training, and retention of the individually named defendants, the amended complaint is bereft of the foregoing cause of action. Beyond the second, fourth and sixth causes of action, which are allege violations of 42 USC § 1983 on grounds that plaintiffs were falsely arrested, falsely imprisoned, malicious prosecuted-all pursuant to a municipal custom and practice, the amended complaint is bereft of any cause of action for negligence in the hiring, training, and retention of police officers as a violation of federal law. Thus, the Court shall not endeavor to discuss such cause of action.
For the reasons that follow hereinafter, defendants' motion is granted, in part.
Plaintiffs expressly decline to oppose the portion of defendants' motion seeking summary judgment with respect to their state cause of action (the fifth) for the City's negligence in the hiring, training and retention of the individually named defendants and their cause of action (the Sixth) based on a municipal custom and practice as violative of 42 USC § 1983. Thus, the Court treats the foregoing as a concession by plaintiffs and on this ground, shall grant the relevant portions of defendants' motion. Accordingly, the remainder of this decision shall largely address the only issue contested-plaintiffs' state and federal malicious prosecution claim.
The instant action is for false arrest, false imprisonment, malicious prosecution, violations of 42 USC § 1983, and negligence in the hiring, training, and retention of police officers. Within the amended complaint, plaintiffs allege that on January 21, 2012, within premises known as 755 Southern Boulevard, Bronx, NY, plaintiffs were arrested imprisoned and subsequently prosecuted by defendants. Insofar as defendants had no probable cause to arrest plaintiffs, the complaint alleges that plaintiffs were falsely arrested and falsely imprisoned by Sharma and defendants DANNY BERMEO (Bermeo) and DERVENT WILLIAMS (Williams), all of whom were police officers employed by the City and acting within the scope of their employment. Plaintiffs further allege that inasmuch as defendants issued a desk appearance ticket, with malicious intent and absent probable cause, defendants' maliciously prosecuted them. Plaintiffs allege that the City was negligent in hiring, training and retaining Sharma, Bermeo, and Williams and also allege that their arrest, imprisonment, and prosecution violated 42 USC § 1983 insofar as the foregoing violated their rights under the Fourth Amendment to the United States Constitution.
By so-ordered stipulation dated November 13, 2014, plaintiffs withdrew all state law claims against Bermeo and Williams.
Defendants' motion seeking summary judgment with respect to plaintiffs' claim for malicious prosecution is hereby denied insofar as defendants' own evidence establishes that defendants did in fact initiate a cognizable criminal proceeding against them and that the same was terminated favorably in plaintiffs' favor (the only basis upon which defendants' seek dismissal of this claim). Accordingly, defendants fail to establish prima facie entitlement to summary judgment.
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986] ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v. DiStefano, 16 A.D.3d 637, 638, 792 N.Y.S.2d 177 [2d Dept 2005] ; Peskin v. New York City Transit Authority, 304 A.D.2d 634, 634, 757 N.Y.S.2d 594 [2d Dept 2003] ). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v. Bacchus, 282 A.D.2d 387, 388, 724 N.Y.S.2d 46 [1st Dept 2001], revd on other grounds Ortiz v. City of New York, 67 A.D.3d 21, 25, 884 N.Y.S.2d 417 [1st Dept 2009] ).
Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. As noted by the Court of Appeals,
[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case.
(Friends of Animals v. Associated Fur Manufacturers, Inc., 46 N.Y.2d 1065, 1067–1068 [1979] [internal citations omitted] ). Accordingly, generally, if the opponent of a motion for summary judgment seeks to have the court consider inadmissible evidence, he must proffer an excuse for failing to submit evidence in inadmissible form (Johnson v. Phillips, 261 A.D.2d 269, 270, 690 N.Y.S.2d 545 [1st Dept 1999] ).
Moreover, when deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman (278 A.D.2d 811, 811 [4th Dept 2000] ),
[s]upreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial
(see also Yaziciyan v. Blancato, 267 A.D.2d 152, 152, 700 N.Y.S.2d 22 [1st Dept 1999] ; Perez v. Bronx Park Associates, 285 A.D.2d 402, 404, 728 N.Y.S.2d 33 [1st Dept 2001] ). Accordingly, the Court's function when determining a motion for summary judgment is issue finding not issue determination (Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 404 [1957] ). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 231 [1978] ). When the existence of an issue of fact is even debatable, summary judgment should be denied (Stone v. Goodson, 8 N.Y.2d 8, 12 [1960] ).
The tort of malicious prosecution provides protection from and provides redress for the initiation of unjustifiable litigation (Broughton at 457). However, since public policy favors bringing criminals to justice, the system must afford accusers room for benign misjudgments (Smith–Hunter v. Harvey, 95 N.Y.2d 191, 195 [2000] ). This, of course, fosters the long standing belief that the court system is open to all without fear of reprisal through the use of retaliatory lawsuits (Curiano v. Suozzi, 63 N.Y.2d 113, 119 [1984] ). Thus, a plaintiff asserting a cause of action for malicious prosecution must satisfy a heavy burden (Smith–Hunter at 195, 712 N.Y.S.2d 438, 734 N.E.2d 750 ).
The essence of a cause of action for malicious prosecution is the perversion of proper legal procedures (Broughton at 457; Boose v. City of Rochester, 71 A.D.2d 59, 65, 421 N.Y.S.2d 740 [4th Dept 1979] ). As such, a prior judicial proceeding is the sine qua non, of such cause of action (id. at 65, 421 N.Y.S.2d 740 ). Simply stated, then, a cause of action for malicious prosecution is one where it is alleged that a legal proceeding was maliciously initiated "without probable cause for doing so which finally ends in failure" (Curiano at 118, 480 N.Y.S.2d 466, 469 N.E.2d 1324 ). The elements of the cause of action for malicious prosecution stemming from a prior criminal proceeding, all of which are required for recovery, are (1) the commencement or continuation of a prior criminal proceeding by the defendant; (2) the termination of the prior proceeding in favor of the plaintiff; (3) the absence of probable cause for the initiation of the prior criminal proceeding; and (4) actual malice (Cantalino v. Danner, 96 N.Y.2d 391, 394 [2001] ; Smith–Hunter at 195, 712 N.Y.S.2d 438, 734 N.E.2d 750 ; Colon v. City of New York, 60 N.Y.2d 78, 82 [1983] ; Martin v. City of Albany, 42 N.Y.2d 13, 16 [1977] ; Broughton at 457; Heany v. Purdy, 29 N.Y.2d 157, 159–160 [1971] ). Actual malice can be inferred by the absence of probable cause to effectuate an arrest or by conduct that is reckless or grossly negligent (Fortunato v. City of New York, 63 A.D.3d 880, 881, 882 N.Y.S.2d 195 [2d Dept 2009] ). Probable cause for the prosecution can be presumed if a criminal defendant is indicted by the grand jury, such presumption can be overcome, however, if "the conduct of the police deviated so egregiously from acceptable police activity as to demonstrate an intentional or reckless disregard for proper procedures" (Haynes v. City of New York, 29 A.D.3d 521, 523, 815 N.Y.S.2d 143 [2d Dept 2006] ). The elements for a malicious prosecution cause of action based upon a prior civil action are identical except, that in addition to the foregoing, it must be proven that plaintiff sustained special damage or injury (The Purdue Frederick Company v. Steadfast Insurance Company, 40 A.D.3d 285, 286, 836 N.Y.S.2d 28 [1st Dept 2007] ; Wilhelmina Models, Inc. v. Fleischer, 19 A.D.3d 267, 269, 797 N.Y.S.2d 83 [1st Dept 2005] ; Honzawa v. Honzawa, 268 A.D.2d 327, 329, 701 N.Y.S.2d 411 [1st Dept 2000]. Generally, special damages mean that the prior action interfered with a plaintiff's person or property (Williams v. Williams, 23 N.Y.2d 592, 604 [1969] ; The Purdue Frederick Company at 286, 836 N.Y.S.2d 28 ; Wilhelmina Models, Inc. at 269, 797 N.Y.S.2d 83 ; Honzawa at 329) or proof of "concrete harm that is considerably more cumbersome than the physical, psychological or financial demands of defending a lawsuit" (Engel v. CBS, Inc., 93 N.Y.2d 195, 205 [1999] ).
Whether an action is terminated favorably so as to give rise to a cause of action for malicious prosecution depends on how the action was terminated. In Levy's Store, Inc. v. Endicott–Johnson Corporation (272 N.Y. 155 [1936] ), the court confronted with this very issue stated
[i]t is true that where a proceeding has been determined in favor of the accused by judicial action of the proper court or official in any way involving the merits or propriety of the proceeding or by a dismissal or discontinuance based on some act chargeable to the complainant, as his consent or his withdrawal or abandonment of his prosecution, a foundation in this respect has been laid for an action of malicious prosecution. Where, however, the proceeding has been terminated without regard to its merits or propriety by agreement or settlement of the parties or solely by the procurement of the accused as a matter of favor or as the result of some act, trick or device preventing action and consideration by the court, there is no such termination as may be availed of for the purpose of such an action. The underlying distinction which leads to these different rules is apparent. In one case, the termination of the proceeding is of such a character as establishes or fairly implies lack of a reasonable ground for the prosecution. In the other case, no such implication reasonably follows
(id. at 162, 5 N.E.2d 74 ; see also, Loeb v. Teitelbaum, 77 A.D.2d 92, 100, 432 N.Y.S.2d 487 [2d Dept.1980] ). Thus, a favorable termination on the merits and in favor of the accused or defendant in the prior action-since it implies lack of probable cause-satisfies the element of favorable termination in a cause of action for malicious prosecution, while a termination chargeable to the plaintiff or complainant in the prior action, such as settlement, withdrawal or discontinuance, does not (Levy's Store, Inc. at 162, 5 N.E.2d 74 ; Loeb at 100, 432 N.Y.S.2d 487 ). In Pagliarulo v. Pagliarulo (30 A.D.2d 840, 840, 293 N.Y.S.2d 13 [2d Dept 1968] ), the court held defendant's agreement to discontinue a prior action served to bar plaintiff's action for malicious prosecution insofar as discontinuance of the prior action against the plaintiff was not a favorable termination.
For purposes of malicious prosecution, probable cause means facts and circumstances which would lead a reasonably prudent person, in similar circumstances, to conclude that plaintiff was guilty of the acts alleged (Colon v. City of New York, 60 N.Y.2d 78, 82 [1983] ; Munoz v. City of New York, 18 N.Y.2d 6, 10 [1966] ; Fink v. Shawangunk Conservatory, Inc., 15 A.D.3d 754, 755, 790 N.Y.S.2d 249 [3d Dept 2005] ; Boose at 67). Whether there is probable cause to initiate a prosecution hinges on whether defendant's conduct at the time he/she commenced the prior proceeding would have led a reasonably prudent person to initiate the prior proceeding (Levy's Store, Inc. at 161, 5 N.E.2d 74 ; Loeb at 102, 432 N.Y.S.2d 487 ; Kezer v. Dwelle–Kaiser Company, 222 A.D. 350, 354, 225 N.Y.S. 722 [4th Dept 1927] ). When the facts regarding the existence of probable cause and the inferences to be drawn therefrom are undisputed, the existence of probable cause can be decided as a matter of law (Parkin v. Cornell University, Inc., 78 N.Y.2d 523, 528–529 [1991] ; Lundgren v. Margini, 30 A.D.3d 476, 477, 817 N.Y.S.2d 349 [2d Dept 2006] ).
In support of the instant motion, defendants submit a transcript of plaintiff MIKE SOSA's (Sosa) 50–h hearing, wherein he testified in pertinent part, as follows. On January 21, 2012, at approximately 5PM, he along with plaintiff LIXDANIA PEREZ (Perez)-his fiancé-and non-party Angel Careces (Creces) were arrested while within the second floor hallway of premises located at 755 Southern Boulevard, Bronx, N.Y. (755). Sosa resided within 755 on the fifth floor. Immediately prior to being arrested, Sosa and Perez had been at a family gathering on the second floor of 755. As they waited by the elevator, intending to return to Sosa's apartment, several police officers arrived at the second floor, puyshed Sosa and then demanded that he empty his pockets. The officers also searched Perez and Careces. Upon searching Careces, who was standing in the hallway about 10 feet away, they recovered a bag of Marihuana. Sosa, Perez, and Careces were handcuffed, arrested, and transported to the 41st Precinct, where Sosa was again searched, placed in a cell for five hours, given a Desk Appearance Ticket (DAT) and released. Perez was also given a DAT and released. Thereafter, after one court appearance, the charges against Sosa were dismissed.
Defendants submit the transcript of Perez' 50–h hearing, wherein she testified, in pertinent part, as follows. Perez gives a nearly identical account of the relevant events as Sosa. Perez also adds that her DAT was also dismissed after one court appearance.
Defendants submit copies of the DATS issued to plaintiffs subsequent to their arrest. The same evince that on January 22, 2012, plaintiffs were charged with Criminal Possession of Marihuana in the Fifth Degree (PL § 221.10). Defendants also submit an affidavit June 7, 2012, evincing that the District Attorney declined to prosecute plaintiffs on grounds of insufficient paperwork.
Based on the foregoing, defendants fail to establish prima facie entitlement to summary judgment with respect to plaintiffs' cause of action for malicious prosecution. As noted above, the elements of the cause of action for malicious prosecution stemming from a prior criminal proceeding, all of which are required for recovery, are (1) the commencement or continuation of a prior criminal proceeding by the defendant; (2) the termination of the prior proceeding in favor of the plaintiff; (3) the absence of probable cause for the initiation of the prior criminal proceeding; and (4) actual malice (Cantalino at 394, 729 N.Y.S.2d 405, 754 N.E.2d 164 ; Smith–Hunter at 195, 712 N.Y.S.2d 438, 734 N.E.2d 750 ; Colon at 82 [1983, 468 N.Y.S.2d 453, 455 N.E.2d 1248 ]; Martin at 16, 396 N.Y.S.2d 612, 364 N.E.2d 1304 ; Broughton at 457; Heany at 159–160, 324 N.Y.S.2d 47, 272 N.E.2d 550 ).
Here, both Sosa and Perez testified that they were a issued DAT and that the same was subsequently dismissed. A review of the affidavit submitted by defendants establishes that the charges against the plaintiffs were dismissed because the prosecutor-having insufficient paperwork, namely a deficient supporting information-declined to prosecute them. Based on the foregoing, defendants argue that they are entitled to summary judgment because the issuance of a DAT, which results in a declination to prosecute is not tantamount to the initiation of an action and the DA's declination to prosecute-resulting in dismissal-is not a favorable termination on the merits. Both contentions are meritless inasmuch as they are contrary to controlling law.
First, defendants' contention that the issuance of a DAT is, by itself, insufficient to constitute-for purposes of a malicious prosecution claim-the initiation of a criminal proceeding, finds no support in controlling law. In fact, defendants' proposition only finds support in persuasive federal and state case law, both of which have been expressly overruled. To be sure, defendants rely on Garret v. Port Authority of New York and New Jersey (2006 WL 2266298 [SDNY 2006] ), where the court held that because "the initiation of the legal process in the form of either an arrest warrant or an arraignment is a prerequisite to a malicious prosecution claim" (id. at *3–4), the issuance of a summons is not "the initiation of legal process for the purposes of the § 1983 malicious prosecution claim" (id. at 4). Disingenuously, however, defendants fail to apprise the Court that Garret was expressly overruled by Stampf v. Long Island R. Co. (761 F.3d 192 [2012] ), where the court, disregarding the holding in Garrett, held that "under New York law, the issuance of a DAT sufficiently initiates a criminal prosecution to sustain a claim of malicious prosecution" (id. at 199 ). More specifically, the Court stated
[w]e recognize that several courts of first instance, following the language of Stile, have ruled that a DAT does not initiate a criminal proceeding. Nonetheless, in view of the fact that the Second Department has never held that a DAT does not initiate a criminal proceeding for the purposes of a malicious prosecution claim, and that the Third and Fourth Departments in Snead and Allen held, in accordance with Rosario, that it does, we adhere to the position we took in Rosario that, under New York law, the issuance of a DAT sufficiently initiates a criminal prosecution to sustain a claim of malicious prosecution
(id. at 199 ). Thus, clearly federal case law fails to support defendants' position that the issuance of a DAT is insufficient to initiate a criminal proceeding for purposes of a malicious prosecution claim. Similarly, because the court in Stapmf also held that a prosecutor's declination to prosecute is-for purposes of a malicious prosecution claim-a favorable disposition on the merits (id. at 201 ["We believe that, under New York law, a declination as received by Stampf suffices to establish termination in the plaintiff's favor notwithstanding that the prosecutor is theoretically capable of resurrecting the prosecution."] ), defendants' assertion to the contrary is similarly unavailing.
To the extent that defendants also rely on McCmellan v. New York City Transit Authority (111 Misc.2d 735, 444 N.Y.S.2d 985 [Civil Ct N.Y.1981] ), for the proposition that a DAT which fails to result in further prosecution cannot give rise to a claim for malicious prosecution, they rely on abrogated case law. McClellan has been expressly overruled. To be sure in Snead v. Aegis Sec., Inc. (105 A.D.2d 1059, 482 N.Y.S.2d 159 [4th Dept 1984), the Appellate Division noted the holding in McClellan, but held that the DAT issued to the plaintiff in that case, requiring him to appear in court was "sufficient prior judicial activity to support plaintiff's cause of action for malicious prosecution" (id at 1060, 482 N.Y.S.2d 159 ; see also Allen v. Town of Colonie, 182 A.D.2d 998, 999, 583 N.Y.S.2d 24 [3d Dept 1992] [Court held that DAT issued to plaintiff for DWI was tantamount to the initiation of a criminal proceeding so as to satisfy that element of an action for malicious prosecution.] ).
Defendants also rely on Martin v. Columbia Greene Humane Soc., Inc. (17 A.D.3d 839, 793 N.Y.S.2d 586 [3d Dept 2005] ), for the proposition that a declination to prosecute is not a favorable termination on the merits so as to give rise to a claim of malicious prosecution. Martin, however, is inapposite. To be sure, in Martin the court held "that the first cause of action, which alleges malicious prosecution, must be dismissed since the underlying criminal charges against plaintiffs were undisputedly voluntarily withdrawn without prejudice and there is no indication that this withdrawal was intended as a formal abandonment of the proceeding" (id. at 841, 396 N.Y.S.2d 612, 364 N.E.2d 1304 ). Thus, in Martin, the court was merely applying the well settled principle promulgated by the Court of Appeals in Smith—Hunter -namely, that "any final termination of a criminal proceeding in favor of the accused, such that the proceeding cannot be brought again, qualifies as a favorable termination for purposes of a malicious prosecution action ... [and that even] [a] dismissal without prejudice qualifies as a final, favorable termination if the dismissal represents the formal abandonment of the proceedings by the public prosecutor" (id. at 191, 198, 712 N.Y.S.2d 438, 734 N.E.2d 750 ). Thus, here, unlike in Martin, the dismissal was clearly one, where insofar as premised on insufficient paperwork, was not to be brought again. Accordingly, on this record, dismissal of the DAT issued to plaintiffs was a favorable disposition one on the merits .
It hardly bears any mention that this Court-in the absence of any First Department precedent to the contrary-is bound by the holdings in Sneadand Allen ( Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d 663, 664, 476 N.Y.S.2d 918 [2d Dept 1984] ["The Appellate Division is a single statewide court divided into departments for administrative convenience and, therefore, the doctrine of stare decisis requires trial courts in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or this court pronounces a contrary rule." (internal citations and quotation marks omitted) ] ).
Because defendants fail to establish prima facie entitlement to summary judgment the Court need not address the sufficiency of plaintiffs' opposition (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] ["The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (internal citation and quotation marks omitted) ]; 6014 Eleventh Ave. Realty, LLC v. 6014 AH, LLC, 114 A.D.3d 661, 661, 979 N.Y.S.2d 686 [2d Dept 2014] ), and this portion of defendants' motion is denied. It is hereby
ORDERED that plaintiffs' Fifth and Sixth causes of action, as pleaded in the amended complaint, be dismissed with prejudice. It is further
ORDERED that defendants serve a copy of this Decision and Order with Notice of Entry upon plaintiff within thirty (30) days hereof.
This constitutes this Court's decision and Order.