The following papers were considered on the motion by defendants LAZ Parking New York/New Jersey LLC, Leonides Pozo-Moin and Sebit Dada for an order granting them summary judgment dismissing plaintiff's complaint:

Plaintiff Donato Del Bene commenced this action on April 19, 2018, alleging causes of action for false arrest, malicious prosecution and abuse of process, based on the claim that defendants made false accusations against plaintiff to the police, causing him to be arrested on a charge of which he was acquitted at trial. The underlying events occurred on May 4, 2017, at the parking garage next to the Walmart located at 275 Main Street in White Plains, New York. According to plaintiff, he had shopped at Walmart and made some purchases, at which time a cashier validated his parking ticket, so that he would not need to pay for the time he had parked in the garage. However, when he attempted to drive out of the parking garage, the gate did not open. Plaintiff called over the parking attendant, defendant Leonides Pozo-Moin, who explained that the parking ticket reader said he owed $3.00, so he would need to pay $3.00 to exit.

The parties dispute only the details of what transpired thereafter. According to plaintiff, he first argued with Pozo-Moin, remarking that it felt like extortion, but then he gave the attendant $3.00. Pozo-Moin then walked away, toward an office in the garage, rather than opening the gate. When plaintiff saw the attendant and his supervisor, defendant Sebit Dada, approaching from the rear, holding what plaintiff thought was a bat, plaintiff became worried for his safety. He then reached his arm out his car window, lifted the gate and drove his car gently under it, scraping his car from the front fender and the hood up to the roof and back, after which he pulled over, put on his flashers, and called the police. He then discerned that the item that [*2]had scared him was not a bat, but a clipboard.

In the narrative Pozo-Moin provided at his deposition, first plaintiff argued and cursed at him, then plaintiff threw three dollar bills at him. The money fell to the floor, and Pozo-Moin walked to the garage office and stayed there. Plaintiff soon left his car and walked to the office and yelled at Pozo-Moin to open the gate. Pozo-Moin then told plaintiff, "If you touch me I call the police." Plaintiff returned to his car, entered it, and drove out. Pozo-Main observed that after plaintiff drove past the gate, the arm of the gate was broken, with a piece on the ground.

It is undisputed that the responding police officer spoke to the participants, then arrested plaintiff, charging him with criminal mischief in the third degree, a violation of Penal Law § 145.05(2), a class "E" felony, the elements of which are intentionally damaging the property of another where the damage exceeds $250. Notably, plaintiff does not contend that his actions had no impact on the gate; he acknowledged in his deposition testimony that after he was arrested, when he was being brought to the police car, he saw the arm of the gate on the ground.

Sebit Dada, an Assistant Manager at the LAZ parking garage, explained at his deposition that a responding police officer informed him that plaintiff said he intended to file charges, and asked if Dada wanted to file charges against plaintiff. Dada responded in the affirmative. The officer asked Dada the value of the damage, which Dada said he estimated at $1,000 - $2,000. The Owner's Deposition form signed by Sebit Dada identified the damaged property as "exit gate valued $2,000."

After multiple appearances in criminal court, the charge against plaintiff was reduced to criminal mischief in the fourth degree, which charge does not include any minimum value. After a bench trial held on November 2, 2017, the charge was dismissed. The trial court found that the People had not proven beyond a reasonable doubt either that it was plaintiff who caused damage to the complainants' property, or that he had the intent to cause such damage.

In bringing this action on April 19, 2018, for false arrest, malicious prosecution and abuse of process against defendants Leonides Pozo-Moin and Sebit Dada, and against their employer, LAZ Parking, based on vicarious liability, plaintiff alleges that defendants Pozo-Moin and Daba made unjustified and false accusations against him to the police, Pozo-Moin by providing a false statement to the police regarding the events, and defendant Dada, by executing an owner's deposition falsely asserting that the value of the damaged exit gate was $2,000, without any factual basis for the valuation.

In this motion for summary judgment dismissing the complaint, defendants contend that plaintiff cannot prove any of the causes of action. Plaintiff opposes.

In a motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact about the claim (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Once this showing is made, the burden shifts to the party opposing the motion to produce evidentiary proof sufficient to establish the existence of material issues of fact which require a trial (id.). "[W]e must view the evidence in the light most favorable to the plaintiff, as the nonmoving party, and afford him the benefit of every favorable inference" (see LeBlanc v Skinner, 103 AD3d 202, 211-212, 955 NYS2d 391 [2d Dept 2012] ).

"To establish [a] cause of action [for false arrest] the plaintiff must show that: (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the [*3]plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State, 37 NY2d 451, 456 [1975]; see Gonzalez v State of New York, 110 AD2d 810 (2d Dept1985).

In moving for summary judgment, defendants initially argue that the false arrest claim must be dismissed because the evidentiary submissions cannot establish an intent to confine plaintiff; defendants emphasize that Dada was not present for the verbal altercation between plaintiff and Pozo-Moin, and, that Pozo-Moin walked away from plaintiff and went to the parking attendant booth prior to plaintiff driving through the parking gate. However, this argument mischaracterizes the nature of the contemplated confinement for the cause of action. It involves, for these purposes, an intended confinement by the police, based on allegedly false information.

Defendants also rely on case law holding that where a false arrest claim is made against an individual who provided information to a police officer, which officer then made an arrest, the individual may not be held liable for false arrest merely for giving information to the police, who then act on their own volition in making an arrest (see D'Elia v 58-35 Utopia Parkway Corp., 43 AD3d 976 [2d Dept 2007]). Plaintiff responds that although liability may not be premised on merely furnishing information to law enforcement authorities, "[o]ne who wrongfully accuses another of criminal conduct and induces or procures that person's arrest may be liable for false arrest" (D'Elia, 43 AD3d at 978). In D'Elia, the judgment in favor of the plaintiff on his false arrest claim was affirmed, with the observation that the plaintiff established, by a preponderance of the credible evidence, that he was arrested by police officers based on false accusations made against him by the defendants (id.).

The type of conduct on the part of a civilian complainant that supports a claim of false arrest is further illustrated by Mesiti v Wegman (307 AD2d 339 [2d Dept 2003]), where a judgment in favor of the plaintiff on a false arrest claim was upheld. There, the parties had been involved in an accident in which the plaintiff had, while driving, hit the defendant, who was a pedestrian. The two disagreed as to what transpired next. The plaintiff asserted that he had stopped, gotten out of his vehicle, asked if the defendant was injured, offered his insurance information and volunteered to take the defendant to the hospital, but that the defendant had declined assistance, and the plaintiff saw no indication that the defendant was injured. However, the defendant asserted that the plaintiff had yelled at him and "sped away" (id. at 339). After the plaintiff was found not guilty of the charged violation of Vehicle and Traffic Law § 600 (2), he brought an action against the defendant for false arrest and malicious prosecution. In affirming the jury verdict against the defendant, the Court explained that

"the jury reasonably found that the defendant acted with undue zeal by affirmatively instigating the plaintiff's arrest. It is undisputed that the police knew that the vehicle which struck the defendant was registered to the plaintiff and that the defendant was aware that the police were actively investigating the incident. Consequently, the defendant had no reason to believe that the plaintiff would not surrender himself to the police or be arrested. The jury therefore was able to reasonably determine that the defendant instigated the plaintiff's arrest by going to the plaintiff's place of business, telephoning the police, and identifying him on the spot in front of his customers"

In contrast, in Du Chateau v Metro-North Commuter R.R. Co. (253 AD2d 128, 129 [1st Dept 1999]), the Court dismissed claims for false imprisonment and malicious prosecution. The [*4]plaintiff had been a passenger on one of defendant's trains, who became upset when the train's conductor insisted that he pay his fare notwithstanding his explanation that he had a monthly pass, although he had forgotten it that day. Police arrived in response to a call, and the conductor reported that the passenger had roughly grabbed her arm as she attempted to walk away, displaying a red mark on her arm. The officer charged the passenger with a violation of Penal Law § 240.26. After the passenger was acquitted after trial, he commenced an action for false imprisonment and malicious prosecution. The complaint was dismissed on appeal, because the conductor had merely furnished information to the police officer, who was then "free to exercise his own judgment as to whether an arrest should be made and criminal charges filed" (Du Chateau v Metro-North , 253 AD2d at 131). "Nor does identifying plaintiff as the perpetrator of a crime, signing the summons or testifying at trial give rise to tort liability" (id.).

Here, defendants' submissions establish that defendants Dada and Pozo-Moin merely furnished information to the responding police officer, and neither importuned nor instigated plaintiff's arrest. In opposition, plaintiff has not offered evidence establishing that the decision to arrest him was based on false accusations made against him by the defendants, or that defendants instigated, induced or procured plaintiff's arrest. Rather, as to Pozo-Moin, the record reflects that he described to the police the argument that arose between plaintiff and himself out of the requirement that he pay $3.00. While plaintiff disputed some of the details, such as the assertions that he threw his money at Pozo-Moin and that he cursed, yelled, threatened and used expletives, the disputed details given by Pozo-Moin were not the basis for plaintiff's arrest; he was not arrested for yelling, cursing or throwing his money. He was arrested due to an accusation of which there was no real dispute, the fact that after his demand to be let out was not complied with, plaintiff then drove past, or under, the gate when it was in the closed position, and that thereafter the arm of the gate was found on the ground. The charge against plaintiff that he intentionally caused damage to the garage's property was not shown to have been based on any false statement by Pozo-Moin.

Counsel for plaintiff argues that the rule of Mesiti v Wegman (307 AD2d at 340-341) applies here, because Dada "instructed" the White Plains police to arrest plaintiff. However, the evidentiary material on which he relies, the Dada deposition, fails to support the claim that any such "instruction" was given. Rather, in the portion of the deposition on which plaintiff relies, Dada was asked, and answered, the following:

"Q    Did the officer ever ask you when you had a conversation with him if you wanted Mr. Del Bene arrested?

"A    The officer ask me that he going to file charge against you, against us because that's what he told the officer I think. Either he going to charge you — I mean he going to — what do you — he going to file charges against you or you want to file charges against him?

"Q    What was your response to that?

"A    My respond was I file charge against him.

"Q    When you indicated that you wanted to file charges against defendant, what did you want to file charges for?

"A    Because he want — I mean he broke my property. So how you going to file a charge against me? I'm supposed to file against him, not him make it the opposite way."

The foregoing questions and answers do not establish that Dada induced or procured [*5]plaintiff's arrest. On the contrary, they establish that Dada provided requested information to a police officer specifically seeking it, and who then acted on his own volition in deciding to make an arrest.

As to Dada's assertion to the police, allegedly without any factual basis, that the damaged gate arm was valued at $2,000, it is not the type of falsehood that would in itself justify a false arrest charge. While the arresting officer asked Dada for an estimate, and recited that estimate in the supporting paperwork, it is apparent that the estimate was not instrumental in the officer's decision of which crime to charge, since the charge of Criminal Mischief in the Third Degree (Penal Law § 145.05 [2]) applies to any property damage exceeding $250. Had the officer relied on Dada's value assessment, he would have charged plaintiff with Criminal Mischief in the Second Degree (Penal Law § 145.10), which applies to property damage of over $1,500. The officer, who could personally observe the nature of the damage, could make his own visual assessment.

Because there is no evidence creating an issue of fact regarding the showing that both Pozo-Moin and Dada merely furnished information to the police officer, who then "exercise[d] his own judgment as to whether an arrest should be made and criminal charges filed" (Du Chateau v Metro-North , 253 AD2d at 131), summary judgment dismissing the false arrest cause of action is granted.

To establish a malicious prosecution claim, the plaintiff must establish: (1) commencement or continuation of a criminal proceeding by the defendant against the plaintiff; (2) termination of the proceeding in favor of the accused; (3) absence of a probable cause for the criminal proceeding; and (4) actual malice (Broughton v State of New York, 37 NY2d 451, 457 [1975]). In seeking summary judgment, defendants contend that plaintiff cannot establish an absence of probable cause. They observe that plaintiff admits that there was a dispute between himself and Pozo-Moin, and, further, that plaintiff admits that his car made contact with the subject gate, and that after he passed it a piece of the gate lay on the ground. They also observe that the responding police took statements from the participants as to what occurred and then made the determination to arrest plaintiff. The submitted evidence establishes grounds for the officers' determination that they had probable cause to arrest and prosecute plaintiff for the damage that they observed to the gate. Nothing submitted by plaintiff creates a question of fact on that point.

Therefore, summary judgment dismissing the cause of action for malicious prosecution is granted.

To establish an abuse of process, an individual must show: "(1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective" (Curiano v Suozzi, 63 NY2d 113, 116 [1984] ). "[T]he 'gist of the action for abuse of process' . . . is 'the improper use of process after it is issued'" (id. at 117). Defendants' submissions show an absence of evidence establishing these elements, and nothing in plaintiff's submissions in opposition creates an issue of fact. Therefore, this cause of action must also be dismissed.

In view of the foregoing, the vicarious liability claim against LAZ Parking must be dismissed as well.

Based upon the foregoing, it is hereby

ORDERED that defendants' motion for summary judgment dismissing the complaint is granted, the complaint is dismissed as against all defendants, and the Clerk is directed to enter judgment accordingly.

This constitutes the decision and order of the Court.