The following papers numbered 1 to 5 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-3

Opposing Affidavits (Affirmations)4

Reply Affidavits (Affirmations)5

Affidavit (Affirmation)

Other Papers

Upon the foregoing papers, defendant JC Penny Corporation, Inc., moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the complaint.

The motion is granted to the extent that plaintiff's cause of action for the intentional infliction of emotional distress is dismissed and to the extent that defendant has demonstrated that its employee's had reasonable grounds to detain plaintiff under General Business Law § 218. The motion is denied with respect to plaintiff's causes of action for false imprisonment and defamation and to the extent that there are factual issues as to whether the manner and length of plaintiff's detention was reasonable under General Business Law § 218. [*2]

Plaintiff has alleged causes of action for defamation, false imprisonment and intentional infliction of emotional distress based on defendant's employee's detaining her on April 14, 2009 for taking a watch from defendant's store. On that afternoon, plaintiff entered defendant's store located at the Staten Island Mall with her seven-year-old son and five-year-old daughter. It is undisputed that defendant's loss prevention officers, while monitoring the store's surveillance cameras, observed plaintiff pick up a watch from a display, walk around the store carrying the watch in her hand, and then walk out of the store into the mall's gallery without paying for a watch. Plaintiff concedes that she walked out of the store without paying for the watch, but asserts that she forgot that was holding the watch when she hurried out of the store to catch up with her daughter, who had walked out of the store ahead of her. Shortly after plaintiff left the store, a loss prevention officer approached plaintiff, briefly grabbed plaintiff's arm, and requested that she "come with her" to the store security office. Defendant's employee's held plaintiff in the security office until the police came and issued a summons, at which time plaintiff left with the police. Plaintiff asserts that the resulting criminal action was dismissed.

Defendant now moves for summary judgment dismissing the complaint. With respect to the defamation and false imprisonment causes of action,^[FN1] defendant contends that they are barred by General Business Law §218.^[FN2] Section 218 was enacted to protect merchants from [*3]the consequences of detaining suspected shoplifters until the arrival of the police since, prior to the enactment of section 218, an arrest or detention by a private party was only privileged if the suspect was found to have actually committed the crime (see Jacques v Sears Roebuck & Co., 30 NY2d 466, 474 [1972]; see also Morello v Saratoga Harness Racing, Inc., 53 NY2d 775 [1981], revg on the dissent below 75 AD2d 921, 922-924 [1980]; CPL 140.30). In order to take advantage of the protections of section 218, defendant bears the initial summary judgment burden of demonstrating that there were reasonable grounds for detaining plaintiff, that the detention was conducted in a reasonable manner and that the detention was for a reasonable duration (see Restrepo v Home Deport U.S.A., Inc., 92 AD3d 857 [2012]; Muza v Niketown NY, 278 AD2d 13, 14 [2000]). Reasonable grounds to detain a suspected shoplifter under section 218 has been equated with a finding of probable cause to arrest (see Mullen v Sibley, Lindsay & Curr Co., 71 AD2d 21, 26 [1979], reversed on other grounds 51 NY2d 924 [1980]; Sada v Kohl's Dept. Stores, Inc., 36 Misc 3d 1207 [A], 2010 NY Slip Op 50007 [U] *6 [Sup Ct Kings County 2010], affd 79 AD3d 1121 [2010]; Maxie v Gimbel Bros., 102 Misc 2d 296, 301 [Sup Ct New York County 1979]).

Here, defendant's evidence showing that plaintiff walked out of the store without paying for the watch demonstrates, prima facie, that defendant's employees had reasonable grounds for detaining plaintiff (see Jacques, 30 NY2d at 474-475; Martinez v Wegmans Food Mkts., 270 AD2d 834 [2000], lv denied 95 NY2d 757 [2000]; see also People v Olivo, 52 NY2d 309, 318 [1981]). Plaintiff's deposition testimony that she forgot that she had a watch in her hand when she walked out of the store in order to catch up with her daughter, while it might demonstrate that plaintiff did not have the subjective intent to commit a crime, fails to demonstrate an issue of fact as to whether defendant's employees had reasonable grounds to detain plaintiff because such an exculpatory explanation does not negate the existence of reasonable grounds or probable cause for her detention (see People v Nunez, 61 AD3d 409 [2009]; Baker v City of New York, 44 AD3d 977, 980-981 [2007], lv denied 10 NY3d 704 [2008]; Drayton v City of New York, 292 AD2d 182, 183 [2002], lv denied 98 NY2d 604 [2002]; Orminski v Village of Lake Placid, 268 AD2d 780, 781-782 [2000]; cf. Mullen v Sibley, Lindsay & Curr Co., 51 NY2d 924, 925-926 [1980]). As there is no real factual dispute in this regard, the issue of reasonable grounds or probable cause can be determined as a matter of law (see Baker, 44 AD3d at 980-981; Orminski, 268 AD2d at 781).^[FN3]

Defendant has also submitted evidence that would demonstrate, prima facie, that the manner and duration of the detention were reasonable. In this regard, the deposition testimony of Leticia Marrero, in conjunction with defendant's report relating to the incident, demonstrates that plaintiff was detained at approximately 5:45 P.M., that she was interviewed by the one of the other loss prevention officers from 5:56 P.M. to 6:10 P.M. that the police [*4]were called at 6:05 P.M., that the police arrived at 6:47 P.M. and that plaintiff left when the police left at approximately 7:05 P.M. Marrero testified that plaintiff did make a cell phone call to her husband, that no one looked in plaintiff's bags, that she does not recall anyone telling plaintiff that she could not make a telephone call, telling plaintiff that she would be spending the night in central booking, or telling her that her children would be placed in the custody of protective services. Marrero added that once the police arrived the matter was in their hands. Accordingly, the majority of the detention by defendant's employees involved simply waiting for the police, and effectively ended at 6:47 P.M. with the arrival of the police. This evidence would be sufficient to demonstrate the reasonableness of plaintiff's detention as a matter of law (see Conteh v Sears, Roebuck & Co., 38 AD3d 314, 315 [2007], lv denied 9 NY3d 814 [2007]; Luppo v Waldbaum, Inc., 131 AD2d 443, 446 [1987]; Bell v Gap, Inc., 189 Misc 2d 719, 720 [App Term 2001]; see also Watkins v Sears Roebuck & Co., 289 AD2d 73 [2001]).

Defendant, however, has also attached plaintiff's deposition transcript to its moving papers. At her deposition, plaintiff testified that after defendant's employees led her to the security office with her two children, they searched her bags, they prevented her from making a phone call, and did not provide information as to why she was being held for a long period of time. After she had been held for approximately two hours, plaintiff asserts one of the employees told her that "[w]e're trying to reach the local police department to come and give you a summons or whatever they're going to do. If we don't reach the police, you're going to central booking and your children will be taken away." According to plaintiff, it was only after another half and hour to an hour that the police came, and issued the summons. Based on this testimony, the jury could infer that defendant's employees only attempted to contact the police after holding plaintiff for approximately two hours. Under these circumstances, including the relatively low value of the watch and the fact that plaintiff was detained with her young children (Restreopo v Home Depot U.S.A., Inc., 29 Misc 3d 1237 [A], 2010 NY Slip Op 52185 [U] *5 [Sup Ct Queens County 2010], affd 92 AD3d 857 [2012]), defendant has failed demonstrate its prima facie entitlement to summary judgment with respect to whether the manner and duration of plaintiff's detention was reasonable (see Restrepo, 92 AD3d at 857; Muza, 278 AD2d at 14).^[FN4]

Of note, although the time imprinted on the surveillance videotape - which shows that plaintiff walked out of the store at 17:43 (or 5:43 P.M.) - supports defendant's other evidence [*5]with respect to the length of plaintiff's detention, defendant has not submitted any evidence verifying that the video camera's time counter was correctly set.^[FN5] Further, none of the other evidence in the record shows that plaintiff's testimony relating to the length of time she was detained must be rejected as a matter of law (see Davis v Pimm, 228 AD2d 885, 887-888 [1996], lv denied 88 NY2d 815 [1996]; Gaeta v Morgan, 178 AD2d 732, 734 [1991]). Accordingly, factual issues with respect to the applicability of General Business Law § 218 preclude dismissal of plaintiff's false imprisonment and defamation causes of action.^[FN6]

On the other hand, viewing the record in a light most favorable to plaintiff, the conduct of defendant's employees in detaining plaintiff does not, as a matter of law, arise to the extreme conduct necessary to establish a cause of action for the intentional infliction of emotional distress (see Kaye v Trump, 58 AD3d 579 [2009], lv denied 13 NY3d 704 [2009]; Brown v Sears Roebuck & Co., 297 AD2d 205, 212 [2002]). As such, defendant's motion

must be granted to the extent that the third cause of action for the intentional infliction of emotional distress is dismissed.

This constitutes the decision, order and judgment of the court.

Dated: June 21, 2012E N T E R,

J. S. C.