Pellegrini v Duane Reade Inc NY Slip Op 31352(U) July 22, 2015 Supreme Court, New York County Docket Number: /2012 Judge: Cynthia S.

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1 Pellegrn v Duane Reade nc NY Slp Op 31352(U) July 22, 2015 Supreme Court, New York County Docket Number: /2012 Judge: Cyntha S. Kern Cases posted wth a "30000" dentfer,.e., 2013 NY Slp Op 30001(U), are republshed from varous state and local government webstes. These nclude the New York State Unfed Court Systems E-Courts Servce, and the Bronx County Clerks offce. Ths opnon s uncorrected and not selected for offcal publcaton.

2 [* 1] SUPREME COURT OF THE ST A TE OF NEW YORK COUNTY OF NEW YORK: Part x GORDON PELLEGRN and KETH CERVONE, -aganst- Plantffs, ndd No /2012 j DECSON/ORDER DUANE READE NC., SOTTLE SECURTY CO. and JOHN DOES 1-5, Defendants x HON. CYNTHA S. KERN, J.S.C. Rectaton, as requred by CPLR 2219(a), of the papers consdered n the revew ofths moton for: ~ Papers Numbered Notce of Moton and Affdavts Annexed... Answerng Affdavts... 2 Replyng Affdavts... 3 Exhbts... 4 Plantffs brng ths acton to recover for assault; battery; false arr~st and mprsonmejt; malcous prosecuton; abuse of process; neglgent tranng; neglgence; ~nd ntentonal and ~J neglgent nflcton of emotonal dstress. Defendant Duane Reade nc. ("Duane Reade") nol moves for partal summary judgment dsmssng plantffs causes of acton for false arrest a~d mprsonment; malcous prosecuton; abuse of process; ntentonal nflcton of emotonal d,; dstress; neglgent nflcton of emotonal dstress and neglgent tranng and strkng plantffs,1 demand for puntve damages. Defendant Sottle Securty Co. ("Sottle") cross-moves for partal summary judgment dsmssng plantffs causes of acton for ntentonal nflcton of

3 [* 2] emotonal dstress; neglgent nflcton of emotonal dstress and neglgent tranng and to strke plantffs demand for puntve damages. As set further below, Duane Reades moton s granted only n part and Sottles moton s granted n ts entrety. The relevant facts are as follows. Plantffs clams revolve around an ncdent at a Duane Reade store ("the store") located at 194 East 2nd Street, New York, New York on the 1 J nght of October 29, On that nght, plantffs Gordon Pellegrn ("Pellegrn") and Keth Cervone ("Cervone") planned to attend a Halloween party n Brooklyn. : Before headng to the party n Brooklyn, Cervone testfed that they decded to go to a comer del and buy beers. : Cervone testfed that at the del he purchased two 22 ounce cold Mller Genune Draft bottles of beer and put them n hs jackets front pocket. The plantffs then decded to go to the Duane Reade store drectly across the street to get snacks. At the tme the plarhffs entered the store, plantffs were carryng tenns rackets, whch they clam were part of ther Halloween costucles. Cervone testfed that he walked around the store lookng for snacks and at one ponthe pcked. up a "Jason" Halloween mask that Duane Reade had for sale, put.t on and walked around.! the store wearng the mask. Cervone testfed that he was n the store for about 15 mnutes. : As Cervone attempted to leave the store wth the beers and Halloween mask, securty guard Jyo~_sh Chakraborty ("Chakraborty"), who worked for defendant Sottle, stopped Cervone. Cervon~ testfed that Chakraborty yelled at hm, accused hm of shoplftng the beers and grabbed hs rght arm and pushed hm up aganst the wall. Cervone further attests t~at at ths tme he told Chakraborty the he dd not steal anythng and that he had purchased the beers across the stre Accordng to Chakraborty, Cervone never told hm that he purchased the bottles before he came! to the store. Rather, Chakraborty testfed that he saw Cervone take the bottles from the Duane 1! ;. 2.

4 [* 3] Reade cooler. The survellance footage of the ncdent shows that after Chakraborty stopped Cervone, Cervone began dancng around and playng "ar gutar." Cervone eventually took off.. the mask and tred to leave agan wth the bottles n hs pocket. At ths pont, Chakraborty : :1 removed the bottles from Cervones pocket and placed them on the regster counter. Chakraborty then told the casher to call the manager and Cervone exted the store where co~~ plantff Pellgrn was watng outsde.!.. Plantffs allege they were standng outsde the store dscussng what had happened a?d what they should do when Chakraborty and Duane Reade employee Rchard Arnold ("Arnold") came outsde. A Duane Reade customer wearng a plad shrt also exted the store at ths tme (the "customer"). The partes dspute what occurred next. Accordng to Pellgrn, Arnold,: wthout provocaton, punched hm n the face. Cervone also testfed that Arnold punched Pellgrn n the face. Cervone further testfed that the other "guard," beleved to be Chakraborty, along wth the customer grabbed Cervone and pulled hm back nto the vestbule of the store. He testfed that the customer was tryng to pull hs jacket over hs head and the. securty guard was httng hm from behnd. He further testfed that he fell down at ths po.~t and both Chakraborty and Arnold kcked hm untl he lost conscousness) He then woke up Ln the curb wth no pants on and no jacket. Survellance footage from the store shows that at ol pont Cervone and the customer were fghtng wthn the store. Chakraborty testfed that h~! was not outsde at ths tme and he watched as Arnold, one of the plantffs and the customer ; entered the vestbule. Accordng to Chakraborty, they were all punchng each other when they came nto contact wth hm and he got punched n the face. After ths altercaton, the polce were called and plantffs left the area of the store. 3

5 [* 4] jf However, when plantffs were about a block from the store, they were stopped by squad cars! and arrested. Accordng to the crmnal complant, an employee of Duane Reade told the pd lce that he had observed two men enter the Duane Reade store; at the tme of ther entry, nethe)of them was carryng any beer; a short whle later the two men attempted t~ leave the store wt~out ~ payng whle one of them was carryng several beers; he attempted to prevent the men from ; extng the stores property, whereupon one of them men punched hm about the face and bo~y and the other man struck hm about the head wth a tenns racket. Plantffs were charged wth (a) one count of frst-degree robbery; (b) two counts of second-degree assault; and (c) one c~tmt of fourth-degree crmnal possesson of a weapon. All charges were eventually dsmssed., Plantffs now brng the nstant acton assertng nne causes of acton: ( 1) assault; (2)!; battery; (3) false arrest and mprsonment; (4) malcous prosecuton; (5) abuse of process; (6).. ntentonal nflcton of emotonal dstress; (7) neglgent nflcton of emotonal dstress; (8) ::.: ; neglgent tranng; and (9) neglgence. The frst, second, ffth, sxth, seventh, eghth and n~th ~.1 causes of acton are asserted aganst both defendants, whle the second, thrd and fourth causjs of acton are asserted aganst Duane Reade only. Both defendants now mo~e for partal summly judgment dsmssng plantffs sxth, seventh and eghth causes of acton and strkng plantffs.:.l., demand for puntve damages. Duane Reade also seeks summary judgment dsmssng the t~rd, fourth and ffth causes of acton asserted aganst t. On a moton for summary judgment, the movant bears the burden of presentng suffcent evdence to demonstrate the absence of any materal ssues of fact. See Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986). Summary judgment should not be granted where there s any doubt as to the exstence of a materal ssue of fact. See Zuckerman v. Cty of New York. 49 4

6 [* 5] N.Y.2d 557, 562 (1980). Once the movant establshes a prma face rglt to judgment as a ; matter of law, the burden shfts to the party opposng the moton to "produce evdentary proof n admssble form suffcent to requre a tral of materal questons of fact on whch he rests hs clam." d.. n the present case, as an ntal matter, Duane Reades moton fo~ summary judgmer 1 t dsmssng plantffs thrd cause of acton for false arrest and mprsonment s granted as Du~ne Reade has establshed that there s no ssue of fact as to ts lablty under ths clam. To establsh a clam for false arrest or false mprsonment, plantff must establsh that: "( 1) the defendant ntended to confne hm, (2) the plantff was conscous of the confnement, (3) the, plantff dd not consent to the confnement and (4) the confnement was ~ot otherwse prvleged." Broughton v. State of New York, 37 N.Y.2d 451, 456 (1975). "t s well settleq n. ths States jursprudence that a cvlan complanant, by merely seekng polce assstance or furnshng nformaton to law enforcement authortes who are then free to exercse ther owr judgment as to whether an arrest should be made and crmnal charges fled, wll not be held lable for false arrest or malcous prosecuton." Du Chateau v. Metro-North Commuter R. R. Co A. D.2d 128, 13 ( " Dept 999). "Nor does dentfyng plantff as the perpetrator lf a crme, sgnng the summons or testfyng at tral gve rse to tort lablty.;, d. Rather, ther~ must be evdence that defendant "encouraged the polce to arrest plantff or ntended to confne hm." Berros v. Our Lady of Mercy Med. Ctr.. 20 A.D.3d 361, 362 (1st Dept 2005). Here, the court fnds that no ssues of fact exst as to Duane Reades nvolvement n plantffs arrest as the undsputed evdence demonstrates that Duane Reade dd not encourage the polce to arrest plantffs or ntend to confne them. As an ntal mater, the record ndc~tes 5

7 [* 6] that Duane Reade employees nether confned plantffs n the store aga~st ther wll, nor to6k. ; part n the physcal arrest of plantffs by the NYPD. Further, accordng to the crmnal complant, t s clear that plantffs arrest was based upon NYPDs conversatons wth 1: Chakraborty and the customer who was also nvolved n the altercaton. Although the crmra complant does not dentfy Chakraborty by name, t s clear from the record as a whole that he. 1; Duane Reade employee dentfed n the complant must be Chakraborty as t s undsputed that. he was the only ndvdual who stopped plantff Cervone from extng the store. As 11 Chakraborty s not actually a Duane Reade employee but employed by Sottle, hs actons ca~ot be attrbuted to Duane Reade to hold t lable. Thus, there s no evdenc~ that Duane Reade 1 1 encouraged the polce to arrest plantffs and plantffs cannot mantan a clam for false arrest and mprsonment aganst Duane Reade.,., Smlarly, Duane Reades moton for summary judgment dsmssng plantffs ffth c~use of acton for abuse of process s granted as Duane Reade has demonstrated that plantffs canfot mantan ths clam as a matter of law. "Abuse of process has three ele~~nts: () regularly ; ssued process, ether cvl or crmnal, (2) an ntent to do harm wthout excuse or justfcato?, : and (3) use of the process n a perverted manner to obtan a collateral objectve." d As the Court of Appeals has recognzed, ths tort "s frequently confused wth malcous prosecuton.( Board of Educ. of Farmngdale Unon Free School Dst. v. Farmngdale Classroom Teachers Assn.. Local AFT FL-CO, 38 N.Y.2d 397, 400 (1975). Thus, the Court clarfed the f dstncton between abuse of process and malcous prosecuton clams by: explanng that abu:te of process s when process s ssued lawfully but to accomplsh some unjustfed purpose, wh(le, malcous prosecuton s when one malcously causes process to ssue wthout justfcaton..fd. 11.! 1,. " ", ; ;j

8 [* 7] Here, plantffs fal to dentfy any lawful process used by Duane Reade to accomplsh some unjustfed purpose to sustan a clam for abuse of process. Plantffs clam that Duane Reade commtted an abuse of process by (1) makng ntentonally false and msleadng statements to the polce; (2) provdng ncomplete and msleadng vdeo to the Dstrct Attorneys Offce; and (3) falng to produce any evdence of the beer other than what appear~ on the vdeo. However, none of these assertons, even acceptng them as true, s a lawful proce. used to accomplsh an unjustfed purpose. Rather, these assertons, f supported by adequatb,: evdence, would support a malcous prosecuton clam. Thus, plantffs clam for abuse off l process must be dsmssed.. However, Duane Reades moton for summary judgment dsmssng plantffs fourth; : cause of acton for malcous prosecuton s dened as there reman ssues of fact as to whether Duane Reade faled to provde a complete and unaltered copy of the stores survellance footage to the Dstrct Attorney. "n order to recover for malcous prosecuton, a plantff must establsh four elements: that a crmnal proceedng was commenced; that t was termnated n: favor of the accused; that t lacked probable cause; and that the proceedng was brought out of,..: actual malce." Cantalno v. Danner, 96 N.Y.2d 391, 394 (2001). "New York law has longl : equated the cvl defendants falure to make a full and complete statement of the facts to the Dstrct Attorney or the court, or holdng back nformaton that mght have affected the result~, wth that defendants ntaton of a malcous prosecuton." Ramos v. Cty of New York, 285 A.D.2d 284, 299 (1 51 Dept 2001). Here, the record suffcently supports plantffs clam, for purpos~s of denyng Duan~: Reades moton for summary judgment, that Duane Reade dd not tum over complete and 1 ~s j 7

9 [* 8], unaltered survellance footage to the Dstrct Attorney. The footage provded to the Dstrct!, Attorney ncluded several clps from the nght n queston. ndeed, there was footage from at least three dfferent camera angles, ncludng from camera" " that was ponted drectly on the entrance of the store. However, mysterously absent from what was provded was the footaje of 1. plantffs enterng the store. Whle Duane Reade provded footage from;camera "" startngat : 16, there s no footage from ths camera pror to that tme, whch s when plantffs entered ~he store allegedly wth the beers they were beng charged wth stealng. Footage from ths tme 1.. perod was provded for other cameras wthn the store, but not for camera "." Duane Reade offers no real explanaton for ths mssng footage. Rather, Duane Reade argues that plantffs argument as to the mssng vdeo s dsngenuous as plantffs never moved for spolaton. However, the absence of a moton for spolaton does not, contrary to Duane Reades content~on, negate the realty that no such footage has been produced and no explanaton has been gven fo account for the mssng vdeo that could have showed Cervone enterng the store wth the bee,r. Thus, on ts face, the vdeo footage presented to the Dstrct Attorney ras~s an ssue of fact aj to whether Duane Reade provded a full and complete copy of ts survellance footage to the Dstrct Attorney precludng summary judgment as to plantffs clam for malcous prosecuton. Both Duane Reade and Sottles motons for summary judgment d:smssng plantffs! sxth and seventh causes of acton for ntentonal and neglgent nflcton of emotonal dstress are granted as defendants have demonstrated that plantffs cannot recover under these clams as a matter of law. Both ntentonal and neglgent nflcton of emotonal d.stress requre 1, allegatons that the defendants conduct s "so outrageous n character, and so extreme n degee, as to go beyond all possble bounds of decency and to be regarded as atrocous, and utterly J 8

10 [* 9] Q ntolerable n a cvlzed communty." Berros v. Our Lady of Mercy Med. Ctr., 20 A.D.3d 361, 362 (1st Dept 2005). n the present case, upon revew of the record, the court fnds that net~er 1 defendants conduct rses to level of conduct that s so shockng and outrageous that t exceeds!. all reasonably bounds of decency. Addtonally, both Duane Reade and Sottles motons for summa:ry judgment dsms~,ng plantffs eghth cause of acton for neglgent tranng s granted as plantffs do not seek puntve damages for defendants alleged neglgent tranng of ther respectve employees. "Generally, where an employee s actng wthn the scope of hs or her employment, the employer s lable for the employees neglgence under a theory of respondeat superor and n6 1 clam may proceed aganst the employer for neglgent hrng, retenton, s~pervson or tranng." Talavera v. Arbt, 18 A.D.3d 738 (2nd Dept 2005). "Ths s because f the employee was not neglgent, there s no bass for mposng lablty on the employer, and fthe employee was, neglgent, the employer must pay the judgment regardless of the reasonableness of the hrng"or retenton or the adequacy of the tranng." Karron v. New York Cty Tr. /4uth., 241 A.D.2d 323,. : : 324 (15 1 Dept 1997). "An excepton exsts where the njured plantff s seekng puntve. damages from the employer based on alleged gross neglgence n the hrng or retenton of th~ employee." d. (nternal ctatons omtted). Here, plantffs cannot mantan a clam for neglgent hrng aganst ether defendant ~s plantffs do not seek puntve damages based on defendants alleged neglgent tranng of ther.,., respectve employees. n ther complant, plantffs do not seek an award of puntve damag~s! : based on defendants alleged neglgent tranng of ther employees. ndeed, although plantffs seek puntve damages n regard to ther other seven causes of acton, they seek only

11 [* 10] :J compensatory damages for ther neglgent tranng clam. Thus, defendants motons for summary judgment dsmssng plantffs clam for neglgent tranng must be granted., Fnally, the remander of defendants moton seekng summary judgment strkng plantffs demand for puntve damages s granted as defendants employees conduct was not l amed at the publc generally. "Puntve damages are permtted when th.e defendants wrongdong s not smply ntentonal but evnces a hgh degree of moral turptude and demonstrate such wanton dshonesty as to mply a crmnal ndfference to cvl oblgatons.! Ross v. Louse Wse Servs.. nc., 8 N.Y.3d 478, 489 (2007) (nternal quotatons omtted). "[~] prvate party seekng to recover puntve damages must not only demonstrate egregous tort~us! conduct by whch he or she was aggreved, but also that such conduct was part of a pattern o[ smlar conduct drected at the publc generally." Rocanova v. Equtable Lfe Assurance Socety, 83 N. Y.2d 603, 613 ( 1994 ); see also 1 Mott St., nc. v. Con Edson, 33 A.D.3d 531, $32 (1st Dept 2006). Here, defendants employees conduct cannot, as a matter of law, support ah. l: award of puntve damages as the record contans no evdence that the copduct of ether employee was amed at the publc generally. Rather, the evdence n the record demonstratjs that the complaned about conduct n ths proceedng was drected only at plantffs. Accordngly, t s hereby ORDERED that Duane Reades moton for partal summary judgment dsmssng plantffs thrd, ffth, sxth, seventh and eghth causes of acton and to st~ke plantffs dem~~d. l for puntve damages s granted but s otherwse dened; and t s further ORDERED that Sottles moton for partal summary judgment dsmssng plantffs; ; sxth, seventh and eghth causes of acton and to strke plantffs demand for puntve damages s 10 r,1 11,; 1;.1 ;,,..

12 [* 11] granted. Ths consttutes the decson and order of the court. Dated:/ /.). J. //5 Enter: ;;_e"--jcj{l., J.S.C. CYNTHA S. KERN J.S.C. ",f ;r 11