Opinion
479/2002.
Decided June 30, 2005.
By order to show cause, defendants Alexander's Department Stores of Brooklyn, Inc., Kings Plaza Shopping Center of Avenue U and Kings Plaza Security move for leave to reargue movants' motion for summary judgment, which was denied for failure to appear on December 15, 2003, and upon granting leave to reargue, pursuant to CPLR 2221, for an order granting these defendants summary judgment dismissing the complaint as against them on the ground that no evidentiary proof has been submitted warranting charges of false arrest, imprisonment and assault and battery as against these defendants. Co-defendant Cineplex Odeon Kings Plaza cross-moves for the same relief on the same ground.
This is an action seeking damages for personal injuries allegedly sustained by Eric Williams, presently twenty-four years old, on either April 7 or 28, 1995, when he was age fourteen, and thus a minor, when he was detained and subsequently arrested by officers of the New York City Police Department (NYPD) at the Kings Plaza Shopping Center, located on Avenue U, Kings County. The summons and complaint was filed in Supreme Court, Kings County in October, 1996, and the matter was subsequently removed to this Court pursuant to CPLR 325 (d).
On October 9, 2002, and served the following day on all of the parties, the Kings Plaza defendants moved for summary judgment. On September 22, 2003, Hon. Louis B. York stayed all legal proceedings for 180 days because defendants' insurer, the Home Insurance Co. had been declared insolvent on June 13, 2003. Pursuant to Justice York's order, the Superintendent of Insurance's application to act as ancillary receiver of the company was granted, and the stay remained in effect until March 22, 2004.
On March 25, 2004, while appearing for oral argument on the Kings Plaza defendants' motion for summary judgment, counsel learned that the motion was not on the calendar, but had been denied on December 15, 2003 because of movants' failure to appear, although no court order was issued regarding this denial. Movants now seek leave to reargue their motion pursuant to CPLR 2221, and claim that they failed to appear because counsel believed that the matter had been adjourned to March 25, 2004. Since none of the parties opposes granting movants leave to reargue their previous motion, that branch of movants' motion is granted, and this Court shall determine the matter on the merits.
On either April 7 or 28, 1995 — at various points in plaintiff's papers each date is mentioned — plaintiff, accompanied by his sister, two cousins and some friends, went to the Cineplex Odeon theater at the Kings Plaza Shopping Center, hoping to see the film "Bad Boys" which had just premiered that day. Plaintiff indicates that although he purchased a ticket, he never made it into the theater for the performance. Instead, a great commotion ensued as at least fifty to sixty people rushed the theater, and undercover police officers were brought in. Plaintiff acknowledges that an altercation occurred, and maintains that there were officers with guns drawn inside the theater.
According to plaintiff, he was ultimately arrested, and one of the officers purportedly kicked him in the face. Apparently, plaintiff's cousins were also arrested, but his sister was not, and although he believes that he spoke with the arresting officer, he does not recall whether he was told why he was arrested.
Despite seeing a "blue uniform," plaintiff did not know who kicked him in the face but he required stitches to his head because he "was hit with a club, or something." What he mostly remembered was that the officers "just came up there and started hit and arrest people," and they also began pushing people with their sticks, and that the officers were also hitting people with them.
In his verified bill of particulars, dated June 5, 1997, plaintiff alleges that he sustained injuries to his head, neck, back and body, and that sutures were required because of lacerations to his right cheek and scalp, and that following his release from custody, he was treated in the emergency room at Kings County Hospital following his attempt to see the movie and as a result of the subject incident. The damages sought by plaintiff are predicated on these alleged injuries and his claims of false imprisonment and arrest (see defendants' Exhibit "A" Plaintiff's Amended Summons with Notice and Verified Complaint; defendants' Exhibit "F" EBT of Eric Williams, April 3, 2001; and defendants' Exhibit "G" Plaintiff's Verified Bill of Particulars dated June 5, 1997).
On October 22, 1999, Officer Christopher Flood, the arresting officer, who was also originally a defendant, appeared for his examination before trial. He indicated that on the night of the incident, although there was an attempt to deploy strategic positioning, the officers were greatly outnumbered; that because of this, reinforcements were quickly called for, and many of the youths, knowing that they possessed superior numbers, began screaming to the others that they did not have to leave, despite having been ordered to do so; and that thus, the officers attempted to head off additional trouble by speaking with many of the youths "man to man," individually or with their partners.
According to Officer Flood, he eventually approached three of the more boisterous youths, indicating that they were trespassing, and therefore had to leave the premises; that the three young men responded that they did not have to leave. In addition, Officer Flood claimed that either plaintiff or his friend, Malcolm Byer, told him to go — himself, and almost immediately thereafter, while having placed his right hand on Malcolm's left shoulder in an attempt to arrest him, he was punched in the face from the side; that after he was hit, all three youths jumped on him, with Malcolm trying to get him in a headlock, and they began punching and kicking him, attempting to knock him down, while he tried to handcuff Malcolm, who was tall and quite physical; and that at that point, he also felt a "nice shot" to the back of his head, which was more than a punch, and he was bleeding profusely.
Further, according to Officer Flood, after he was hit, another police officer came over to try to help him, and others also assisted in handcuffing Malcolm; and although he was aware that plaintiff and Malcolm were ultimately brought to the precinct, he did not know about the third individual (see defendants' Exhibit "E" Examination before Trial of Officer Christopher Flood, October 22, 1999, at 17-18, 21-32, 35-36, 37, and 40).
In order to establish a cause of action for false arrest and imprisonment, a plaintiff must demonstrate that (1) the defendant intended to confine him; (2) that he was conscious of the confinement; (3) that he did not consent to it, and (4) that the confinement was not otherwise privileged (Broughton v. State of New York, 37 NY2d 451, 456, cert denied sub nom. Schanbarger v. Kellogg, 423 US 929 ; Lee v. City of New York, 272 AD2d 586 [2nd Dept 2000]). In Broughton, the Court of Appeals noted that a warrantless arrest would be presumptively unlawful, but could be rebutted by a showing of probable cause at the time of the arrest (also see Straton v. Orange County Department of Social Services, 217 AD2d 576 [2nd Dept 1995]). Here, plaintiff has failed to submit documentary or evidentiary proof establishing that these movants were directly responsible for his allegedly false arrest and imprisonment, nor has he shown that they were responsible even indirectly. Let alone is the record devoid of proof that the Kings Plaza defendants and/or Cineplex Odeon engineered the arrest and imprisonment or participated in them, nowhere is it evident that they even aided, abetted or contributed to the purportedly false arrest, imprisonment and malicious prosecution. In addition, even were it to be concluded that plaintiff was falsely arrested, imprisoned and maliciously prosecuted, there is no pre-trial testimony or any other evidentiary proof indicating that movants and/or Cineplex Odeon encouraged any misconduct on the officers' part ( Gurfein v. Kelly, 259 AD2d 664, 665 [2nd Dept 1999]; Shroff v. Faila, 229 AD2d 1031, 1032 [4th Dept 1996]; Shea v. Cornell University, 192 AD2d 857 [3rd Dept 1993].)
Plaintiff has also attempted to connect movants and Cineplex Odeon with his charges premised on an interesting principal-agent argument. On July 19, 2001, Mr. Kent Smith, appearing on behalf of Alexander's Department Stores, testified that the police officers arrived on the scene that night in response to his telephone call. Thus, plaintiff avers, the officers' presence derived from defendants' request, and this, in turn, buttresses his contention that a principal-agent relationship existed, with the officers acting as defendants' agents ( see Hedeman v. Fairbanks, Morse and Co., 286 NY240 [1941]; Meese v. Miller, 79 AD2d 237 [4th Dept 1981]). Consequently, plaintiff asserts that movants and Cineplex Odeon are, as principals, liable for the tortious acts of their agents, the police officers, committed during their scope of employment ( State of New York v. Popricki, 89 AD2d 391 [3rd Dept 1982]).
Plaintiff's argument that Mr. Smith's telephone call requesting police support created a binding principal-agent relationship, albeit interesting, lacks merit. Plaintiff has neither cited supportive, applicable case law, nor submitted evidence warranting this conclusion, and Meese v. Miller, supra is distinguishable from the present case. Moreover, defendants were well within their legal right to provide information to the authorities, who are then free to act in response (Schrull v. Shafer, 252 AD2d 723 (3rd Dept 1998]; Byrd v. Middleton-Bond, 253 AD2d 510 [2nd Dept 1998]). The police department was contacted because of the actual or potential riot; nothing in the record demonstrates that defendants had control over any individual officer, group of officers or the department itself. Defendants did not instigate plaintiff's arrest; instead, factual information was provided, in which plaintiff was not even identified.
In order to establish a cause of action for malicious prosecution, a plaintiff must demonstrate (1) the initiation of an action or proceeding; (2) that it terminated in his or her favor; (3) the existence of lack of probable cause, and (4) malice on the part of the person who initiated the criminal action or proceeding (Du Chateau v. Metro North Commuter Railroad Co., 253 AD2d 128, 131 [1st Dept 1999]). In the present litigation, a petition was filed in Family Court charging that plaintiff had performed an act that would have been a crime if committed by an adult, constituting juvenile delinquency. On September 21, 1995, Hon. Philip C. Segal dismissed the petition, with prejudice.
While plaintiff is correct that this illustrates a previous proceeding that terminated in his favor, there is a question as to whether this proceeding may be regarded as criminal in nature. Even if it is so interpreted, however, nothing appears in the record to support a claim that the proceeding was initiated by movants or Cineplex Odeon, and since this cannot be demonstrated, it is also clear that malice cannot be shown on their part. While Mr. Smith, the employee of Alexander's Department Stores, notified the appropriate authorities of what was happening at the mall, this in and of itself does not prove that defendants played an active role in Williams' prosecution, or importuned the authorities to act, and plaintiff's apparent submission that dismissal of the petition by Judge Segal supports a claim of malice is unavailing (Du Chateau v. Metro North Commuter Railroad Co., 253 AD2d 128, supra). Declarations of hope, belief or engaging in speculation will not defeat a motion for summary judgment ( Zuckerman v. City of New York, 49 NY2d 557, 563).
Finally, plaintiff argues that movants and/or Cineplex may be shown to be liable for commission of an assault and battery on his person by Officer Flood or another of the responding police officers. A civil battery an intentional tort is created by an unwanted, offensive contact with the body of one by another. A civil assault also an intentional tort is manifested by the imminent threat or fear that a battery shall be effectuated ( Lambertson v. United States, 528 F2d 441, 444 [2d Cir 1976], cert denied 426 US 921; see also Maines v. Cronomer Valley Fire Department Co, 50 NY2d 535, 546; Laurie Marie M. v. Jeffrey T.M., 159 AD2d 52 [2nd Dept 1990]; Steinberg v. Goldstein, 27 AD2d 955 [2nd Dept 1967]; Masters v. Becker, 22 AD2d 118 [2nd Dept 1964]). As set forth in the preceding analysis, the same result must obtain, as plaintiff has again failed to demonstrate that any of these defendants encouraged or directly or indirectly participated in the offensive conduct alleged or in creating a climate of imminent threat or fear that the offensive action would be effectuated. It is also noteworthy that plaintiff's action against the City of New York, originally named as a defendant, and Professional Security Bureau, Ltd. were previously dismissed, and this has particular significance with regard to a claim that movants and Cineplex Odeon were principals of the responding police officers, who were actual agents and employees of the City of New York. If it has been found, therefore, that claims as against the City of New York could not stand, it is even a stronger position that the same result should obtain as to these defendants.
Accordingly, for the foregoing reasons, the complaint of plaintiff as against the movants and cross-movant Cineplex Odeon is hereby dismissed in its entirety, and judgment shall be entered in accordance with the preceding.
This constitutes the decision and order of the Court.