[*1]
DiMarinis v Sterling Mets, L.P.
2006 NY Slip Op 52327(U) [13 Misc 3d 1243(A)]
Decided on December 1, 2006
Supreme Court, Nassau County
Phelan, J.
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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on December 1, 2006
Supreme Court, Nassau County


Peter DiMarinis, Plaintiff(s),

against

Sterling Mets, L.P. d/b/a New York Mets and Robert Thompson, Defendant(s).




007503/05



Law Offices of Mitchell J. Devack, PLLC

Attorney for Plaintiff

90 Merrick Avenue, Suite 520

East Meadow, NY 11554

Havkins Rosenfeld Ritzert & Varriale, LLP

Attorneys for Defendants

Eleven Penn Plaza, Suite 2101

New York, NY 10001

Thomas P. Phelan, J.

Motion by defendants Sterling Mets, L.P. d/b/a New York Mets ("Sterling") and Robert Thompson ("Thompson") for an order pursuant to CPLR 3212 awarding summary judgment dismissing plaintiff's complaint is granted.

On May 26, 2004, at approximately 10:00 p.m., plaintiff was a paying spectator at Shea Stadium watching a Mets game. Plaintiff attended the game with a group of about forty (40) others (see Exhibit M, pg. 133 annexed to defendant's motion). Plaintiff alleges he observed an altercation between some fans and defendant Sterling's security personnel. Defendant Thompson is a security supervisor with Sterling.

Plaintiff's complaint asserts three causes of action: false imprisonment, malicious prosecution, and abuse of process. Plaintiff has discontinued his fourth cause of action sounding in battery. In sum, plaintiff contends defendants retaliated against him for taking pictures of the melee and for preventing another spectator from being thrown out of the game for smoking by convincing the security force that the individual was a non-smoker.

At his deposition, defendant Thompson stated he was hit by a bottle thrown from four to five rows below the melee (see Exhibit N, pgs. 37-39 annexed to defendants' motion). Thompson states he saw who threw the bottle and he tried to apprehend the thrower, but Thompson lost his balance and fell (see Exhibit N, pg. 39, 49-50 annexed to defendants' motion). After the game, New York City police officers (NYPD) showed Thompson the men the police officers had placed in the holding cell at Shea. Thompson could not identify any of them as the bottle thrower (Exhibit N, pg. 51 annexed to defendants' motion). [*2]

Subsequently, the police officers stopped the bus upon which plaintiff was riding as it was leaving Shea Stadium. Thompson was brought on the bus by the NYPD, and Thompson identified plaintiff as the thrower (Exhibit N, pg. 57 annexed to defendants' motion). The NYPD, based on Thompson's identification, arrested plaintiff. Plaintiff was held overnight and charged initially with felony assault in the second degree. The matter was resolved on July 28, 2004 by plaintiff being granted an adjournment in contemplation of dismissal (CPL 175.55) and the matter was dismissed in January, 2005, approximately six months later.

To establish a cause of action for false imprisonment, a plaintiff must show that defendant intended to confine him, that plaintiff was conscious of the confinement, that plaintiff did not consent to the confinement and that the confinement was not privileged (Broughton v State, 37 NY2d 451; Gordon v May Department Stores Company, 254 AD2d 327).

Generally, information provided by a identified citizen accusing another individual of a specific crime is legally sufficient to provide the police with probable cause to arrest (Wasilewicz v Village of Monroe Police Department, 3 AD3d 561).

In the context of a claim of false arrest and false imprisonment, there is no liability for merely giving information to legal authorities who are left entirely free to use their own judgment in effecting an arrest or in swearing out a criminal complaint (Chapo v Premier Liquor Corp., 259 AD2d 1050).

"A plaintiff must demonstrate that the defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act' (Du Chateau v. Metro-North Commuter R.R. Co., supra , AT 131). The defendant must have affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his own volition' (59 NY Jur 2d, False Imprisonment and Malicious Prosecution §37; see, Eisenkraft v. Armstrong, 172 AD2d 484, 486, 567 NYS2d 840 [1991])." (Mesiti v. Wegman, 307 AD2d 339; see, Celnick v. Freitag, 242 AD2d 436)


The record herein does not reflect any such active encouragement or importunate conduct by defendants to foster plaintiff's arrest or imprisonment by the NYPD. At best, plaintiff has created an issue of fact regarding whether defendants were motivated to wrongfully identify plaintiff as defendant Thompson's assailant when given the opportunity by the NYPD (compare, Mesiti v. Wegman, supra ).

As to plaintiff's cause of action for malicious prosecution, elements of the tort of malicious prosecution are: 1) the commencement of a criminal proceeding by defendant against plaintiff, 2) [*3]termination of the proceeding in the favor of the accused, 3) the absence of probable cause for the criminal proceeding, and 4) actual malice (Martinez v City of Schenectady, 97 NY2d 78; Colon v City of New York, supra ). Failure to establish any one of the elements defeats the entire claim (Brown v Sears, Roebuck & Co., 297 AD2d 205).

Termination in favor of the accused is only satisfied when the case has been disposed of on the merits finding the accused innocent (Hollender v Trump Village Co-op Inc., 58 NY2d 420). An adjournment in contemplation of dismissal (ACOD) is not the equivalent of a finding of innocence, and thus, it does not support a cause of action for malicious prosecution (Champagne v Shop Rite Supermarkets, 203 AD2d 410).

Abuse of process has three essential elements: 1) regularly issued process, either civil or criminal, 2) an intent to do harm without excuse or justification, and 3) the use of process in a perverted manner to obtain a collateral objective (Curiano v Suozzi, 63 NY2d 113; Panish v Steinberg, 32 AD3d 383).

Defendants did not commence any civil or criminal action. Thompson merely reported the incident to the NYPD officers. Plaintiff's arrest was undertaken by the NYPD, and the office of the Queens District Attorney sought to prosecute plaintiff via a criminal complaint.

The mere reporting of a crime to police and giving testimony are not sufficient to sustain a cause of action for abuse of process since there is neither process issued by defendants, nor use of process " in a perverted manner to obtain a collateral objective'" (Chapo v. Premier Liquor Corp., supra , quoting Curiano v. Suozzi, supra ).

As to plaintiff's request for punitive damages, punitive damages are warranted where the conduct of the party being held liable evidences a high degree of moral culpability, or where the conduct is so flagrant as to transcend mere carelessness or where the conduct constitutes willful or wanton negligence or recklessness (Evan v Stranger, 307 AD2d 439; Lee v Health Force, Inc., 268 AD2d 564).

Plaintiff has no basis for punitive damages for under no reasonable review of the evidence addressed from the record herein can it be concluded that Thompson acted maliciously in connection with plaintiff's arrest (see Williams v Moore, 197 AD2d 511).

Here, defendants have met their burden for summary judgment, and plaintiff has not successfully opposed it.

Plaintiff's complaint is dismissed without costs.

This decision constitutes the order of the court. [*4]

Dated: December 1, 2006Thomas P. Phelan

J.S.C.