The opinion of the court was delivered by: Lewis A. Kaplan, District Judge
Keith Murray asserts federal and state law claims of false arrest and imprisonment and malicious prosecution against his former employer, United Parcel Service, Inc. ("UPS"). The gravamen of the complaint is that UPS instigated Murray's allegedly false arrest and malicious prosecution by law enforcement personnel for his alleged involvement in a scheme to obtain fraudulently and sell cellular phones.*fn1 UPS counterclaims for breach of Murray's duty of loyalty. The matter is before the Court on UPS's motion for summary judgment dismissing the complaint*fn2 and the parties' cross-motions for summary judgment on the counterclaim.
Murray began working as a driver for UPS, the shipping company, in July 2005. He was assigned to cover routes for absent drivers, sometimes in Washington Heights.
In order to expedite deliveries and reduce the number of packages requiring re-delivery -- or "send agains" -- UPS encourages its drivers to get to know building superintendents and their helpers (or "super helpers").*fn3 Murray did so, coming to know, among others, Jose Beato, a super helper for several buildings in Washington Heights.*fn4
During the winter of 2005/06, Murray noticed Beato appearing at various locations with different individuals to pick up packages. Typically, the person waiting with Beato would present identification and a receipt, receive the package, and then hand it to Beato. Beato then would walk away with the package.*fn5
Murray claims that he twice registered concern about Beato's activity to his supervisor, Ralph Cotter.*fn6 According to Murray, Cotter told him that Beato's relationship with UPS customers was not his concern and that Murray should "just get the packages off."*fn7
Some time during the summer of 2006, Murray began delivering packages from his truck directly to Beato. Beato would call Murray on his route to arrange deliveries and, when Murray arrived, Beato would present his green card, along with sales receipts and UPS delivery tracking numbers for the packages.*fn8 Murray matched the tracking numbers to the customer receipts presented by Beato. According to Murray, Beato always signed Murray's delivery information acquisition device ("DIAD")*fn9 when picking up packages from Murray's truck.Murray acknowledged receiving money from Beato, which he characterizes as "tips." He claims also that he received tips from "many customers" on his route.*fn10
In late 2006, another UPS driver provided a confidential tip to the UPS security hotline. The tipster claimed that, while the tipster was on his route, an individual whom he believed was named Alex approached him about getting involved in a cell phone scam in which other UPS drivers were involved.*fn11 UPS security personnel met with the tipster several times. Although he did not identify Murray as involved in the scam, the tipster identified Murray as one of several UPS drivers who work in the vicinity.*fn12
UPS security supervisor, Thomas Cleary, conducted an investigation, which included examining electronic delivery records and hiring a third party to surveil Murray along his route. On three of the five dates on which he was surveilled, Murray was observed and recorded improperly giving packages containing Sprint cell phones from his UPS truck to Beato on the street.*fn13 Cleary's comparison of the video surveillance and electronic delivery data revealed that Murray logged packages as delivered to the actual addressees when in fact he was handing them to Beato on the street. UPS's investigation revealed also that Beato, upon receiving the phones from Murray, sold sold them to a local cell phone store for profit.*fn14 UPS confirmed with Sprint that the cell phones at issue were insurance replacement phones that had been ordered fraudulently.*fn15
UPS contacted the New York City Police Department ("NYPD") regarding Murray in early January 2007. Cleary called and reported "'suspected fraud with a driver of ours involved.'"*fn16 UPS kept the police informed of its investigation and provided them with information on its findings. Nevertheless, Clearly never informed the police that the investigation of Murray had begun with a confidential tip or that a man ...