Dennis Diaz v Lincoln Ctr. for Performing Arts, Inc. (2004 NY Slip Op 50948(U))

Dennis Diaz v Lincoln Ctr. for Performing Arts, Inc.

2004 NY Slip Op 50948(U)

Decided on August 6, 2004

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

DENNIS DIAZ, CESARE MARTE and WILLIAM EASTON, Plaintiffs-Respondents, 03-172

against

LINCOLN CENTER FOR THE PERFORMING ARTS, INC., ARIS MOLFETAS AND "JOHN DOES" #1-3, names unknown at present but designated as employees and security personnel of the LINCOLN CENTER FOR THE PERFORMING ARTS, INC., Defendants-Appellants.

Defendants appeal from an order of the Civil Court, New York County, entered January 17, 2003 (Karen S. Smith, J.) denying their motion for summary judgment dismissing the complaint.

Order entered January 17, 2003 (Karen S. Smith, J.) reversed, motion granted, and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Summary judgment dismissal of plaintiffs' causes of action for false arrest, false imprisonment and malicious prosecution was warranted on the full record developed below. Plaintiffs failed to rebut defendants' prima facie showing that they did not instigate plaintiffs' [*2]arrests, but merely supplied information to the arresting police officers who, based upon their own observations, determined that plaintiffs' arrests were appropriate (see Paisley v Coin Device Corp., 5 AD3d 748, 749-750 [2004]; Grant v Barnes & Noble, 284 AD2d 238, 239 [2001]; Du Chateau v Metro-North Commuter R.R. Co., 253 AD2d 128, 131 [1999]). Evidence tending to show that the arresting police officers were inside the corporate defendant's security office immediately prior to the incident giving rise to plaintiffs' arrests and were accompanied to the scene by the defendant security guards is insufficient, without more, to serve as a predicate for the imposition of liability against defendants upon a false arrest or imprisonment theory. Plaintiffs' malicious prosecution claim similarly fails, since it was not shown that defendants "played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act." (Viza v Town of Greece, 94 AD2d 965, 966 [1983], quoted in Du Chateau v Metro-North Commuter R.R. Co., 253 AD2d at 131.) Plaintiffs' claim for punitive damages should also have been dismissed, since no separate cause of action for punitive damages lies for pleading purposes (see Paisley v Coin Device Corp., 5 AD3d at 750) and since no basis for an award of punitive damages was shown.