| Allen v Ellen Tracy Outlet Store |
| 2006 NY Slip Op 51643(U) [13 Misc 3d 126(A)] |
| Decided on August 29, 2006 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Defendants Ellen Tracy Outlet Store, Ellen Tracy of Woodbury, Inc. and Myrna Pomerantz appeal from an order of the Civil Court, Bronx County (Raul Cruz, J.), dated November 4, 2005, which denied their motion for summary judgment dismissing the complaint.
PER CURIAM:
Order (Raul Cruz, J.), dated November 4, 2005, modified to grant the moving defendants' motion to the extent of dismissing the slander, malicious prosecution, racial profiling and infliction of emotional distress causes of action, and as modified, affirmed, without costs.
In this action where plaintiff, an attorney, was detained and accused of shoplifting at an Ellen Tracy outlet store, summary judgment was properly denied on the false imprisonment and assault and battery causes of action. While the defense set forth in General Business Law § 218 may be available to defendants, issues of fact exist as to whether defendants had reasonable grounds to believe that plaintiff was in possession of unpurchased merchandise and whether plaintiff's detention was conducted in a reasonable manner and for a reasonable duration of time (see e.g. Muza v Niketown New York, 278 AD2d 13 [2000]).
However, the cause of action for slander should have been dismissed since plaintiff failed to identify any of the third persons who overheard the alleged defamatory statements (see Williams v Varig Brazilian Airlines, 169 AD2d 434, 436-37 [1991], lv denied 78 NY2d 854 [1991]). Summary dismissal was also warranted with respect to the cause of action for malicious prosecution in view of the undisputed testimony that no proceeding was ever initiated against plaintiff (see Colon v City of New York, 60 NY2d 78 [1983]), and as to the claim [*2]for racial profiling because plaintiff failed to raise a triable issue of fact as to whether defendants' explanation for their action was pretextual (see Scott v Citicorp Servs., 91 NY2d 823 [1997]). Finally, the conduct attributed to defendants was not so extreme, reckless or outrageous as to support a cause of action for the negligent infliction of emotional distress (see Berrios v Our Lady of Mercy Med. Ctr., 20 AD3d 361 [2005]).
This constitutes the decision and order of the court.
Decision Date: August 29, 2006