The following numbered papers were read on these motions by defendants, Deepdale Gardens Corp., Board of Directors of Deepdale Gardens Corp., Deepdale Gardens Corp. d/b/a Deepdale Gardens, and Deepdale Gardens (collectively Deepdale Gardens) (Seq. 1) for summary judgment dismissing the complaint, pursuant to CPLR 3212; by defendant, Epic Security Corp. (Epic) (Seq. 2) for summary judgment dismissing the complaint, pursuant to CPLR 3212; and by defendant, "John Doe" a/k/a Aronalph Henriques (Henriques) (Seq. 3), seeking dismissal of the complaint, pursuant to CPLR 3211 (a) (5) and (8). Papers Numbered Notices of Motion - Affirmations - Exhibits 1-12 Answering Affidavit - Affirmations - Exhibits 13-21 Reply Affirmations - Exhibits 22-28
Upon the foregoing papers, it is ordered that defendants' motions are determined as follows:
This action, containing causes of action for breach of fiduciary duty, breach of contract, assault, battery, false arrest, false imprisonment, prima facie tort, intentional infliction of emotional distress, negligent infliction of emotional distress, trespass to chattel, conversion, negligence, and negligent supervision and hiring, arises from several alleged incidents which took place in April and May 2015, and thereafter, involving the ownership of a cooperative apartment in Deepdale Gardens, located in Little Neck, Queens, New York, by plaintiff and his late mother. Defendants, Deepdale Gardens and Epic, move for summary judgment dismissing plaintiff's complaint on various grounds. Defendant, Henriques, moves dismiss the complaint, as against him, pursuant to CPLR 3211 (a) (5) and (8),
"[T]he 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 demonstrate the absence of any material issues of fact" (Ayotte v Gervasio, 81 NY2d 1062, 1063, citing Alvarez v Prospect Hospital, 68 NY2d 320, 324 ; see Schmitt v Medford Kidney Center, 121 AD3d 1088 ; Zapata v Buitriago, 107 AD3d 977 ). On one party's motion for summary judgment, the evidence should be liberally construed in a light most favorable to the nonmoving party (see Boulos v Lerner-Harrington, 124 AD3d 709 ; Farrell v Herzog, 123 AD3d 655 ). Summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Collado v Jiacono, 126 AD3d 927 ), citing Scott v Long Is. Power Auth., 294 AD2d 348, 348 ; see Parietti-Fogarty v Fogarty, 141 AD3d 512 ). Credibility issues regarding the circumstances of the subject incident require resolution by the trier of fact (see Bravo v Vargas, 113 AD3d 579 ; Martin v Cartledge, 102 AD3d 841 ), and the denial of summary judgment.
Defendants, Deepdale Gardens, move for summary judgment dismissing plaintiff's complaint, based, in part, upon the alleged grounds that the Board's rules regarding parking passes and the towing of vehicles, and its decisions denying sales of shares to prospective purchasers, are protected by the business judgment rule. The business judgment rule is a common-law doctrine, long recognized in New York, "by which courts exercise restraint and defer to good faith decisions made by boards of directors in business settings" (40 W. 67th St. v Pullman, 100 NY2d 147, 153 ). It has been held that with cooperative dwellings, as here, the rule will apply "[s]o long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith" (Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 538 ; see Matter of Kenneth Cole Prods., Inc. Shareholder Litig., 27 NY3d 268 ; Consumers Union of U.S., Inc. v State of New York, 5 NY3d 327 ; Stinner v Epstein, 162 AD3d 819 [2d Dept 2018]; Tucciarone v Hamlet on Olde Oyster Bay Homeowners Ass'n., Inc., 154 AD3d 898 [2d Dept 2017]). "Levandusky cautions that the broad powers of cooperative governance carry the potential for abuse when a board singles out a person for harmful treatment or engages in unlawful discrimination, vendetta, arbitrary decisionmaking or favoritism. We reaffirm that admonition and stress that those types of abuses are incompatible with good faith and the exercise of honest judgment" (40 W. 67th St. v Pullman, 100 NY2d 147, 157 ).
In the case at bar, the evidentiary proof proffered by movant on its summary judgment motion is insufficient to support the applicability of the business judgment rule. Deepdale Gardens has failed to demonstrate, in any admissible form whatsoever, that its decision denying the application for the purchase of the shares allocated to plaintiff's apartment to Vincent Garamone, was made "in good faith," and was not a "breach of fiduciary duty" (Minkin v Board of Directors of Cortland Ridge Homeowners Ass'n, Inc., 149 AD3d 723, 727 [2d Dept 2017]; see Beach Point Partners v Beachcomber, Ltd., 144 AD3d 719 [2d Dept 2016]). As such, movant has failed to show prima facie entitlement to summary judgment, and its motion should be denied, regardless of the sufficiency of the opposing papers (see Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966 ; Winegrad v. New York Med. Ctr., 64 NY2d 851 ).
A second ground for Deepdale Gardens' summary judgment motion, seeking to dismiss plaintiff's complaint against it, is that the coop cannot be held liable for the alleged tortious actions of the security guard, or his employer, as they were independent contractors.
While "[u]nder the doctrine of respondeat superior, an employer is vicariously liable for a tort committed by an employee while the employee is acting within the scope of his or her employment" (Begley v City of New York, 111 AD3d 5, 27 [2d Dept 2013]), "[g]enerally, 'a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor's negligent acts" (Brothers v New York State Elec. and Gas Corp., 11 NY3d 251, 257 , quoting Kleeman v Rheingold, 81 NY2d 270, 273 ). "Broadly speaking, an employee is someone who works for another subject to substantial control, not only over the results produced but also over the means used to produce the results. A person who works for another subject to less extensive control is an independent contractor" (O'Brien v Spitzer, 7 NY3d 239, 242 ).
"[T]he determination of whether someone is an independent contractor is a fact-specific question" (Carlson v American Intern. Group, Inc., 30 NY3d 288, 301 ), and "[c]ontrol of the method and means by which the work is done is the critical factor in determining" such decision (Nachman v Koureichi, 165 AD3d 818, 819 [2d Dept 2018]). In the case at bar, the Deepdale Gardens defendants have shown that some of the factors relevant to assessing "substantial control" lie with defendant, Epic, and not itself. However, one who hires "an independent contractor has no right to control the manner in which the work is to be done" (Kleeman v Rheingold, 81 NY2d at 274), and movants' own evidence, in the form of the Security Agreement between it and Epic, raises issues of control by Deepdale Gardens pertaining to the manner and method of the work to be done, e.g., the supplying of equipment to Security Guards; the right to discharge said personnel; the requirement to maintain insurance in a specified amount; and the two-plus pages of "Specific Rules of the Corporation" which said personnel must comply with in the performance of their duties. As such, movants have failed to eliminate all questions of fact as to whether they exercised any control over the actions of Epic and the subject Security Guard, and, thereby, have failed to demonstrate that such entities were to be considered "independent contractors," rather than "employees." (see Shusterich v Kleinman, 2019 NY Slip Op. 03098 [2d Dept 2019]). Consequently, this branch of Deepdale Gardens' motion to dismiss is denied.
Moving defendant, Epic, contends (Seq. 2) that, liberally construing the evidence in a light most favorable to the nonmoving plaintiff (see Chojnacki v Old Westbury Gardens, Inc., 152 AD3d 645 ; D'Esposito v Manetto Hill Auto Service, Inc., 150 AD3d 817 ), the collective evidence proffered on this motion for summary judgment has demonstrated plaintiff's inability to succeed in proving the requisite elements of the causes of action alleged, warranting a granting of Epic's motion for summary judgment dismissing the complaint as against it.
Initially, plaintiff admits, in response to discovery and inspection requests, that he "makes no claim whatsoever for physical injuries in this case," and has testified that he never sought treatment for any condition he claimed resulted from the incidents herein, but alleges that he "was depressed ... couldn't sleep ... (and) had anxiety" in support of his causes of action for infliction of emotional distress. However, plaintiff has also testified that he has never been medically diagnosed with having "emotional distress" as a result of the two incidents claimed herein.
In opposition to this motion, plaintiff correctly contends that, in such a cause of action, "emotional harm is compensable even though no physical injury occurred" (Kennedy v McKesson Co., 58 NY2d 500, 504 ; see Baumann v Hanover Community Bank, 100 AD3d 814 . In order to "filter out petty and trivial complaints and ensure that the alleged emotional distress is real" (Taggart v Constabile, 131 AD3d 243, 253 ), breach of a duty of care, without physical injury, is compensable, in a negligence cause of action, only "when the mental injury is a direct, rather than a consequential result of the breach, and when the claim possesses some guarantee of genuineness" (Ornstein v New York City Health & Hosps. Corp., 10 NY3d 1, 6 ; see DiGeronimo v Fuchs, 101 AD3d 933 ; Salandy v Bryk, 55 AD3d 147 ). The element of a "guarantee of genuineness" may be satisfied either by an act of negligence commonly recognized as furnishing an assurance of genuineness, as in the mishandling of a corpse or the giving of false information that a loved one has died (see Johnson v State of New York, 37 NY2d 378 ; Hering v Lighthouse 2001, LLC, 21 AD3d 449 ), or, in the absence of such particular circumstances, it is generally recognized that such guarantee requires a direct breach of duty which endangered the plaintiff's physical safety or caused plaintiff to fear for his physical safety (see Kennedy v McKesson Co., 58 NY2d 500; Taggart v Constabile, 131 AD3d 243).
In the case at bar, moving defendant has, through the evidence presented, including plaintiff's own testimony and pleadings, demonstrated that plaintiff has, prima facie, failed to satisfy the necessary element of "genuineness," and, therefore, cannot prove damages in his negligence and prima facie tort claims, entitling Epic to summary judgment dismissing such causes of action. Defendant has shown that plaintiff has suffered no physical injuries, nor has he claimed lost earnings or lost time from work as a result of his alleged mental injuries. Epic has demonstrated that plaintiff had returned to the coop property extensively after the subject incident, and before the property was sold. Further, plaintiff's own testimony has shown that he did not fear for his own physical safety in the April 12, 2015 incident, but merely feared that if the "taser" were used on him, he was "going to lay there for a period of time, and I needed to be with my mother." Additionally, defendant has shown that plaintiff has not submitted any medical bills or records of treatment by a medical provider attributable to the subject incidents. In opposition, plaintiff has failed to raise a triable issue of fact to rebut such entitlement. Plaintiff's submissions are devoid of medical evidence with regard to any mental or psychological injury, or corroboration of any complaints regarding his alleged anguish or distress to outsiders, which might bolster the "genuineness" of his allegations. Plaintiff proffers only mere unsubstantiated claims of depression, anxiety, loss of sleep, headaches, and the feeling that he didn't "want to be around the area in Deepdale," which allegations fail to satisfy either of the above-stated Court of Appeals-determined requirements for a "guarantee of genuineness" herein. Further, plaintiff has failed to include any additional, admissible factors which might persuade this court to expand the ambit of the element of "guarantee of genuineness," sufficiently to raise a material issue of fact in rebuttal, which could deny judgment to moving defendant (see Zuckerman v City of New York Transit Auth., 49 NY2d 557 ; Baird v Four Winds Hosp., 140 AD3d 810 [2d Dept 2016]).
Consequently, Epic has resolved all factual issues pertaining to plaintiff's ability to prove a cause of action for negligence, prima facie tort, and/or intentional or negligent infliction of mental distress, as a matter of law, and has conclusively disposed of plaintiff's said claims (see McDonagh v Carmel Central School Dist., 170 AD3d 1161 [2d Dept 2019]; Ball v Miller, 164 AD3d 728 [2d Dept 2018]; Sciadone v Stepping Stones Associates, L.P., 148 AD3d 953 [2d Dept 2017]; Town of Huntington v Long Island Power Authority, 130 AD3d 1013 [2d Dept 2015]). As such, the instant motion to dismiss the causes of action based upon negligence, prima facie tort, and negligent or intentional infliction of mental distress, are granted.
Regarding plaintiff's inartfully designated causes of action for "false arrest" and "false imprisonment," it is widely agreed that the terms are "largely synonymous" and "[t]he gist of the action is the unlawful detention" (Jacques v Sears, Roebuck & Co., 30 NY2d 466, 473 ), so the court will consider such causes of action as one for unlawful detention. Such cause of action includes the essential element that plaintiff "was conscious of the confinement" (Petrychenko v Solovey, 99 AD3d 777, 780 [2d Dept 2012]). In the case at bar, plaintiff has admitted, at his examination before trial, that he was not confined during the April 12th incident, when he was asked "was there anything preventing you from simply backing away from the taser at the time it was making contact with your body?," he replied "I did back away." Additionally, in recounting the May 29th incident, plaintiff admitted that his arm "was grabbed ... (for) two seconds. I pushed him off of me." As such, neither of these alleged incidents resulted in an unreasonable detention (see e.g. Gordon v May Dept. Stores Co., 254 AD2d 327 [2d Dept 1998]). Consequently, the branches of Epic's motion seeking dismissal of these causes of action is granted.
Similarly, Epic has demonstrated that plaintiff has failed to present evidence sufficient to meet the elemental requirements of his stated causes of action based on conversion, trespass to chattel, and negligent hiring and retention. Plaintiff's tepid opposition to the arguments seeking dismissal of these causes of action fails to rebut movant's entitlement to summary judgment thereon, and dismissal of such causes of action is granted.
However, the branches of Epic's motion seeking dismissal of plaintiff's causes of action for assault and battery are denied. Contrary to movant's declarations, plaintiff's testimony and opposition papers present ample demonstration that offensive contact took place and that such contact was without plaintiff's consent, as required pursuant to movant's cited cases of Holland v City of Poughkeepsie, 90 AD3d 841 (2d Dept 2011) and Fugazy v Corbetta, 34 ad3D 728 (2d Dept 2006). Not only did plaintiff testify to such contact, but plaintiff presented the affidavit of a witness to such contact. Epic has failed to support its motion, or rebut any such opposition by plaintiff, with affidavits by a party with knowledge, leaving questions of fact in this regard sufficient to deny summary judgment. Additionally, Epic's contention that it should not be held vicariously liable for the alleged actions of the security guard, Henriques, as such actions were unforeseen and without the scope of his employment, fails to dismiss all issues of fact as to whether Henriques' actions were taken wholly for personal reasons, were not job related, and did not fall within the scope of his employment, leaving such questions for the trier of fact to resolve (see Riviello v Waldron, 47 NY2d 297 ; Camisa v Rosen, 150 AD3d 809 [2d Dept 2017]; Scott v Lopez, 136 AD3d 885 [2d Dept 2016]).
Defendant, "John Doe," now known to be Aronalph Henriques, moves to dismiss plaintiff's action against him on statute of limitations grounds, pursuant to CPLR 3211 (a) (5), and pursuant to CPLR 3211 (a) (8), on the ground of lack of jurisdiction, for failure to effect due diligence to discover the identity of the individual defendant. Henriques asserts that there is no argument that he was untimely served with process in this action, as each cause of action alleged against him had either a one or three-year statute of limitations, and Henriques was served on May 31, 2018, over a month beyond three years after the first alleged incident occurred, and several days beyond two years after the last alleged incident. In opposition, plaintiff asserts that his service on Henriques, even after the expiration of the statute of limitations, was permitted pursuant to the relation-back doctrine of CPLR 203 (c).
"In order for a cause of action asserted against a new defendant to relate back to the date a claim was asserted against another defendant, the plaintiff must establish that ... '(1) the [cause of action] arises out of the same conduct, transaction, or occurrence, (2) the additional party is united in interest with the original party, and (3) the additional party knew or should have known that but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against the additional party as well (citations omitted)'" (Ferrara v Zisfein, 168 AD3d 682, 683 [2d Dept 2019], quoting Bumpus v New York City Tr. Auth., 66 AD3d at 35; see Myung Hwa Jang v Mang, 164 AD3d 803 [2d Dept 2018]; Eriksen v County of Suffolk, 154 AD3d 721 [2d Dept 2017]). Here, there is no question but that the action arises from the same occurrence that was the basis for the suit against Epic. Additionally, contrary to defendant's contention, Epic and Henriques were "unified in interest" herein, as defendants have failed to adequately demonstrate that Henriques was acting outside the scope of his employment during the subject incidents.
However, "[t]he 'linchpin' of the relation-back doctrine is whether the new defendant had notice within the applicable limitations period" (Alvarado v Beth Israel Med. Ctr., 60 AD3d 981, 982 [2d Dept 2009]). "The third prong requires the plaintiff to show that his failure to join the proper parties at the outset was not due to his own inexcusable neglect" (Brock v Bua, 83 AD3d 61, 69 [2d Dept 1981]; see Uddin v ATA Construction Corp., 164 AD3d 1400 [2d Dept 2018]; Marrone v Miloscio, 145 AD3d 996 [2d Dept 2016]). Here, plaintiff has unsuccessfully demonstrated that his failure to join Henriques within the period of the appropriate statutes of limitations was not attributable to his own neglect, rather than a "mistake as to the identity of the proper parties" (Rocco G.C. Corp. v Bridge View Tower, LLC, 166 AD3d 1031, 1033 [2d Dept 2018]).
Moving defendant correctly notes that, although plaintiff commenced suit in 2016, under the "John Doe" designation authorized by CPLR 1024, plaintiff was not entitled to bring such suit, nor was plaintiff permitted to apply the relation-back doctrine of CPLR 203 (c) to the later-identified "John Doe" defendant, without first establishing that it made diligent efforts "to ascertain the unknown party's identity prior to the expiration of the statute of limitations" (Bumpus v New York City Tr. Auth., 66 AD3d 26, 35 [2d Dept 2009]). There is no indication in the record that plaintiff engaged in any pre-action discovery or Freedom of Information Law (Public Officers Law art 6) requests. Henriques has demonstrated that plaintiff made his initial attempt at discovery of the security guard's identity on August 22, 2017 - a date approximately twenty-seven months after the final alleged incident, sixteen months after the commencement of the action, and ten months after Epic's appearance in the action. While such discovery demand upon Epic was made prior to the expiration of any cause of action bearing a three-year statute of limitations, thereby demonstrating a minimal showing of due diligence (see Holmes v City of New York, 132 AD3d 952 [2d Dept 2015]; Temple v New York Community Hosp. of Brooklyn, 89 AD3d 926 [2d Dept 2011]), plaintiff, thereafter, failed to serve Henriques with process for an additional period of more than seven months from the date he received the identity information necessary to name and serve Henriques. In addition, plaintiff has failed to move to substitute Henriques for "John Doe," and there has been no showing that the requirements of CPLR 1024 have been complied with (see Ferrara v Zisfein, 168 AD3d 682; U.S. Bank Nat. Ass'n. v Losner, 145 AD3d 935 [2d Dept 2016]; Holmes v City of New York, 132 AD3d 952 [2d Dept 2015]). As such, plaintiff is not entitled to the utilization and operation of CPLR 1024 to permit a relation-back with regard to the late service on Henriques; has not refuted Henriques' entitlement to dismissal of the complaint as against him; and Henriques' motion is granted, dismissing the action against him.
The parties remaining contentions and arguments are either without merit, or need not be addressed in light of the foregoing determinations.
Accordingly, the Deepdale Gardens defendants' motion for summary judgment dismissing the complaint (Seq. 1) is denied. The branches of the motion by Epic (Seq. 2) seeking summary judgment dismissing plaintiff's causes of action for assault and battery are denied. The branches of Epic's motion seeking dismissal of the remaining causes of action against Epic are granted, and the causes of action alleging negligence, false arrest, false imprisonment, prima facie tort, negligent and intentional infliction of mental distress, conversion, trespass to chattel, and negligent hiring and retention are dismissed. The motion by Henriques (Seq. 3) seeking dismissal of the complaint as against him is granted. Dated: May 14, 2019 _______________________________ J.S.C.