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Johnson v. Follett Higher Education Group, Inc.

Supreme Court of New York, Second Department

January 29, 2014

Terri Johnson, respondent,
v.
Follett Higher Education Group, Inc., et al., appellants. Index No. 30100/10

Ahmuty, Demers & McManus, Albertson, N.Y. (Nicholas M. Cardascia and Glenn A. Kaminska of counsel), for appellant Follett Higher Education Group, Inc.

Sokoloff Stern, LLP, Carle Place, N.Y. (Steven C. Stern and Mark A. Radi of counsel), for appellant Lagena Solomon.

Lewis Johs Avallone Aviles, LLP, Islandia, N.Y. (Jessica Klotz, Seth M. Weinberg, Robert Lifson, and Elizabeth A. Fitzpatrick of counsel), for appellant James Williams.

Rose W. Weber, New York, N.Y., for respondent.

REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, L. PRISCILLA HALL, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for false arrest, malicious prosecution, and abuse of process, the defendants appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated April 18, 2012, as denied those branches of their separate motions which were for summary judgment dismissing the causes of action alleging false arrest, malicious prosecution, and abuse of process insofar as asserted against each of them.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, and those branches of the defendants' separate motions which were for summary judgment dismissing the causes of action alleging false arrest, malicious prosecution, and abuse of process insofar as asserted against them are granted.

The Supreme Court erred in denying those branches of the defendants' separate motions which were for summary judgment dismissing the causes of action alleging false arrest, malicious prosecution, and abuse of process insofar as asserted against them. The defendants each established their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging false arrest and malicious prosecution insofar as asserted against them by demonstrating that the defendants Lagena Solomon and James Williams, employees of the defendant Follett Higher Education Group, Inc. (hereinafter Follett), sought police assistance after a robbery. Solomon and Williams provided information to the police, Solomon testified before the grand jury that indicted the plaintiff, and they both testified at the plaintiff's trial. Solomon identified the plaintiff, a fellow employee at Follett's store, as the perpetrator of the robbery, and Williams, who also worked at the store, provided a physical description of the perpetrator. A civilian defendant who merely furnishes information to law enforcement authorities, who are then free to exercise their own independent judgment as to whether an arrest will be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution (see Robles v City of New York, 104 A.D.3d 829, 829-830; Lupski v County of Nassau, 32 A.D.3d 997, 998; Mesiti v Wegman, 307 A.D.2d 339; Du Chateau v Metro-North Commuter R.R. Co., 253 A.D.2d 128, 131). Further, since the plaintiff was indicted by the grand jury for the subject incident, a presumption of probable cause was created for the purposes of the malicious prosecution cause of action (see Rodgers v City of New York, 106 A.D.3d 1068, 1070; cf. Broughton v State of New York, 37 N.Y.2d 451, 456, cert denied 423 U.S. 929). Contrary to the plaintiff's contention, in opposing the defendants' motion, he failed to raise a triable issue of fact as to whether the defendant employees intentionally provided false information or deliberately misled the police. The defendants similarly established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging abuse of process by demonstrating that they did not use the criminal prosecution of the plaintiff "in a perverted manner to obtain a collateral objective" (Curiano v Suozzi, 63 N.Y.2d 113, 116). In response to this prima facie showing, the plaintiff failed to raise a triable issue of fact.

RIVERA, J.P., DICKERSON, LEVENTHAL and HALL, JJ., concur.


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