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August 2, 1999


The opinion of the court was delivered by: McMAHON, District Judge.


This matter, in which plaintiff asserts claims of defamation, malicious prosecution, civil conspiracy and hostile work environment (all under New York law), was to have been tried to the Court on July 19, 1999. Because it was to be a bench trial, and a short one at that, I deferred consideration of defendants' motion for summary judgment until the close of plaintiff's case. However, on July 16, 1999, it became clear that plaintiff would not appear at the trial of this action, because her employer was unwilling to permit her to miss certain business commitments during the week scheduled for trial. Rather than dismiss the case outright for non-prosecution, I heard argument on the motion for summary judgment. I now grant that motion and dismiss the Complaint.

Insofar as the charges of defamation, malicious prosecution and civil conspiracy are concerned, the facts of this matter are as follows: Theresa Baer worked for Sprint PCS as a supervisor and then as a store manager. During her tenure as a supervisor at a store in New York City, some $1,700 in cash turned up missing. The matter was never resolved. Then, in her two months as acting manager of a new store in Port Chester, New York, several thousand dollars disappeared in two separate incidents — one involving an unauthorized $2,010 ATM withdrawal from the store's bank account, the other involving the belated deposit into the bank of $3,326.63 in cash receipts, and the loss of another $1,800 in cash receipts, all of which were taken in by the Port Chester store during its first few weeks of operation, before its banking arrangements were settled. Ms. Baer, as store manager, was responsible for all the Port Chester shortfalls and she was, of course, discharged.

In accordance with company policy the matter was referred to Sprint Corporate Security. David Parker, a senior investigator for Sprint, came to New York to look into the matter. He interviewed many employees, taking sworn statements from them, and also interviewed Fleet Bank personnel and reviewed relevant documentation. It is undisputed that he did not interview Ms. Baer. He claims it was because she claimed to be ill and declined to be interviewed; she contends it was for other reasons. This is not a material fact.

After Parker concluded his investigation, and conferred with the Regional Security Manager, Sprint concluded that there was probable cause to believe that a crime had occurred and that the matter should be reported to the authorities. Parker therefore filed a complaint with Detective Edward Ames of the Port Chester Police. Parker turned over the results of his investigation to Detective Ames and opined that the evidence in his possession pointed to Theresa Baer as a suspect. Detective Ames did not conduct his own investigation. However, he reviewed Parker's file and made his own assessment that Ms. Baer was a suspect. He, in turn, gave the file to the Westchester County District Attorney's Office, where the facts and investigative reports were reviewed by an Assistant District Attorney. The ADA brought charges of third-degree grand larceny against Ms. Baer. Those charges were subsequently dropped by the District Attorney's office. There was no adjudication on the merits.

There is no evidence to indicate that Sprint PCS had any involvement with the matter after it filed its complaint with Detective Ames and Parker submitted his findings and conclusions to him.

Defendants are entitled to summary judgment on each of plaintiff's four claims.

On the civil conspiracy claim, they are entitled to summary judgment because there is no such actionable tort in New York. See Ferguson v. Meridian Distribution Servs., Inc., 155 A.D.2d 642, 548 N.Y.S.2d 233 (2d Dept. 1989) (citations omitted).

On the defamation claim, they are entitled to summary judgment on multiple grounds. First, the allegedly defamatory statements, which consisted of complaints to either Sprint Corporate Security or to the Port Chester Police, are qualifiedly privileged. See Toker v. Pollak, 44 N.Y.2d 211, 220, 405 N.Y.S.2d 1, 5, 376 N.E.2d 163 (1978); Williams v. Tritschler, 184 A.D.2d 690, 691, 585 N.Y.S.2d 99, 100 (2d Dept. 1992). This privilege applies even if the information provided law enforcement authorities about the alleged commission of a crime turns out to be incorrect. Second, Ms. Baer would be able to overcome the privilege only by offering extrinsic evidence that Sprint PCS acted solely out of malice. See Present v. Avon Products, Inc., 253 A.D.2d 183, 687 N.Y.S.2d 330, 333-34 (1st Dept. 1999); Liberman v. Gelstein, 80 N.Y.2d 429, 439, 590 N.Y.S.2d 857, 863, 605 N.E.2d 344 (1992). This she cannot do, as to either common law or actual malice. As regards the former, Sprint PCS clearly and indisputably had an interest in finding out what had happened to its missing money and bringing the perpetrator(s) to justice. Moreover, Ms. Baer testified at her deposition that she knew of no one at Sprint PCS that harbored any ill will, spite or malice against her. See Examination Before Trial of Theresa Mary Baer ("Baer EBT") at 113-114, attached as Ex. B to Declaration of Douglas J. Martino in Opposition to Defendants' Summary Judgment Motion. She cannot defeat a summary judgment motion by now contending otherwise. See PC COM, Inc. v. Proteon, Inc., 946 F. Supp. 1125, 1137 n. 28 (S.D.N.Y. 1996); Rosner v. Codata Corp., 917 F. Supp. 1009, 1019 (S.D.N.Y. 1996); FDIC v. Betancourt, 865 F. Supp. 1035, 1046 (S.D.N.Y. 1994). As regards actual malice, there is no evidence in this record from which a reasonable jury could conclude that defendants had a "high degree of awareness of . . . probable falsity" of Parker's statements to the police. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 667, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). Sprint PCS conducted an extensive investigation. It relied on its employees' statements and on third-party sworn statements, which it is entitled to do. See Day v. Cedar, 181 A.D. 261, 168 N.Y.S. 334 (1st Dept. 1917), aff'd sub nom., Day v. Levine, 228 N.Y. 588, 127 N.E. 911 (1920). There is absolutely no evidence in this record that Sprint PCS blinded itself to contrary information, which might support an inference of malice. See Sweeney v. Prisoners' Legal Services of New York, Inc., 84 N.Y.2d 786, 793, 622 N.Y.S.2d 896, 647 N.E.2d 101 (1995). Furthermore, both the police and the District Attorney's Office concurred in Spring PCS's conclusions.

Defendants are entitled to summary judgment on plaintiff's claim of malicious prosecution as well. First, there was no adjudication on the merits of the charges against plaintiff; they were dismissed by the District Attorney prior to trial. That is not a favorable determination on the merits, which is an absolute prerequisite to any recovery for malicious prosecution. MacFawn v. Kresler, 88 N.Y.2d 859, 644 N.Y.S.2d 486, 666 N.E.2d 1359 (1996); Dobies v. Brefka, 1999 WL 500190 (3d Dept. July 15, 1999); Smith-Hunter v. Harvey, 1999 WL 485444 (3d Dept. July 8, 1999); Struve v. Bingham, 244 A.D.2d 178, 663 N.Y.S.2d 578 (1st Dept. 1997).

Second, Sprint PCS did not commence criminal proceedings. It filed a police report. It is well settled that one who discloses to a prosecutor all he knows concerning a potential criminal matter and does no more is not liable for commencing any ensuing prosecution. Schwimmer v. Guardian Life Ins. Co., 104 F.3d 354 (2d Cir. 1996). The fact that Parker stated his belief that Baer was the prime suspect does not alter that result: "If the defendant merely states what he believes, leaving the decision to prosecute entirely to the uncontrolled discretion of the officer . . . the [defendant] is not regarded as having instigated the prosecution." White v. Frank, 855 F.2d 956, 962 (2d Cir. 1988) (quoting W. Prosser, Law of Torts § 653 comment g (4th ed. 1971)).

Third, there can be no malicious prosecution where there is no malice, and for the reasons stated above, there is no malice in this case.

Fourth, on the record before this Court, no reasonable trier of fact could conclude that plaintiff was arrested and indicted without probable cause. While the evidence against her was entirely circumstantial, and while others besides plaintiff might have enjoyed access to the office safe where the undeposited cash was kept, there was indeed circumstantial evidence against her, which is sufficient to support a conviction (let alone an indictment) under New York law. Dismissal of an indictment prior to ...

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