Opinion
Index No. 34065/2019E
12-14-2023
Pren Mrijaj on behalf of himself and all others similarly situated, Plaintiff, v. Genting New York LLC, D/B/A RESORTS WORLD CASINO NEW YORK CITY, Defendant.
Plaintiff Pren Mrijaj Andrew St. Laurent, Esq. Harris St. Laurent & Wechsler LLP David B. Rankin, Esq. Beldock Levine & Hoffman LLP Defendant Genting New York City LLC d/b/a Resorts World Casino New York City Benjamin Greenfield, Esq. Wilson, Elser, Moskowitz, Edelman & Dicker LLP Joshua Cash, Esq. Wilson, Elser, Moskowitz, Edelman & Dicker LLP
Plaintiff Pren Mrijaj Andrew St. Laurent, Esq. Harris St. Laurent & Wechsler LLP David B. Rankin, Esq. Beldock Levine & Hoffman LLP
Defendant Genting New York City LLC d/b/a Resorts World Casino New York City Benjamin Greenfield, Esq. Wilson, Elser, Moskowitz, Edelman & Dicker LLP Joshua Cash, Esq. Wilson, Elser, Moskowitz, Edelman & Dicker LLP
Veronica G. Hummel, J.
In accordance with CPLR 2219(a), the decision herein is made upon consideration of all of the papers filed by the parties in NYSCEF in support of and in opposition to the motion of plaintiff PREN MRIJAJ (" Plaintiff ") (Mot. Seq. 2) seeking an order, pursuant to CPLR 901 and 902, certifying a class action, and the cross-motion of defendant GENTING NEW YORK LLC. D/B/A RESORTS WORLD CASINO NEW YORK CITY (" Defendant ") seeking an order, pursuant to CPLR 3211(a)(7), dismissing the complaint and proposed class action as against Plaintiff as the complaint individually and on behalf of the proposed class is deficient and fails to state a viable legal claim. Of note, as part of oral argument held on May 31, 2023, the parties were granted time to submit additional papers, which the parties declined to do, and Motion Sequence 3 was withdrawn.
Background
The Memorandum of Understanding
The State of New York owns the raceway located at 110-00 Rockaway Boulevard, Queens County (the" Aqueduct Racetrack" or the" Premises ").
Defendant is licensed to manage the video casino (the" Video Casino ") at the Aqueduct Racetrack pursuant to a Memorandum of Understanding (the" MOU "), dated September 13, 2010, between Defendant and the State of New York. In the MOU, Defendant agreed to act as the State of New York's video lottery gaming agent (" VLG Agent "). Notably, Article 1, paragraph 1.1 of the MOU provides that the Video Casino "shall be developed and operated in accordance with this MOU, the Division of the Lottery's regulations, bulletins and instructions and all applicable laws." Furthermore, paragraph 1.2 of the MOU provides that the State of New York retains ownership of all property and improvements. Under the MOU, Defendant must operate the Video Casino in accordance with the applicable laws and the Division of the Lottery's regulations. MOU ¶¶ 2.1, 11.1.
Paragraphs 13.2 and 13.2.1 of the MOU further provide, in relevant part, that Defendant must comply with all application provisions of legislation, including, without limitation, the Racing Law, the Pari-Mutuel Wagering and Breeding Law, and the Tax Law. As part of that obligation, the MOU provides that the Video Casino "shall be subject to any and all rules and regulations promulgated by the Division of the Lottery pursuant to Section 1617-a of the Tax Law." MOU ¶ 13.2.1.
In the event of Defendant's material default on these obligation, the State of New York may deem the MOU terminated. MOU ¶ 14.1.
The New York State Gaming Commission (the" Gaming Commission ") is the state agency that manages the Video Casino's lease. Its predecessor state agency was the Division of Lottery. Importantly, the State of New York and the Gaming Commission are not parties to this action, which is not an Article 78 proceeding.
The Motion to Dismiss
The complaint was filed on November 26, 2019. In relevant part, Plaintiff alleges the following facts.
Plaintiff was first detained by Video Casino staff on January 19, 2018 (the" First Detention "). On that date, Plaintiff was playing roulette at the Video Casino when casino personnel, including security guards, approached him and demanded that he leave the floor with them. These individuals escorted Plaintiff to the Video Casino's basement and locked him in a room, where he was informed that he had broken a screen on one of the casino machines. Plaintiff admitted to tapping the side of one of the machines in frustration but denied breaking either a screen or any other part of the machine.
Plaintiff asked to see the video surveillance of him allegedly breaking one of the machines. This request was refused. Instead, Plaintiff was shown a surveillance picture of him walking through the Video Casino and a picture of a broken screen.
Plaintiff was held in the locked room, with a security guard, for at least two hours. He was told that he could either pay for the damage that he had allegedly caused or the police would be called. Plaintiff refused to pay what was demanded, so the Video Casino staff called the police. When they arrived, the police were allegedly shown a video of Plaintiff striking a machine. Plaintiff was then arrested and charged.
Plaintiff spent the day in police custody. He retained counsel and received an adjournment in contemplation of dismissal. After a six-month period of adjournment, the criminal case against Plaintiff was dismissed.
Plaintiff was again detained by Video Casino staff on August 9, 2019 (the" Second Detention "). On that date, Plaintiff returned to the Video Casino for the first time in over a year. Plaintiff called the Video Casino beforehand and was told that he was cleared to enter the facility. Plaintiff cashed in a voucher for $5,000. Shortly thereafter, two security officers approached Plaintiff and told him he needed to go with them. Throughout the time he was in Defendant's custody, Plaintiff was told by Defendant's agents that Defendant had the right to hold him until the payment of the amount demanded was made.
The security officers took Plaintiff into the same basement room and at least one security officer stayed in the room with Plaintiff the entire time. Plaintiff was locked in this room for more than an hour, when a supervisor came in and told him that, if he refused to pay for the screen he had allegedly broken in 2018, they would call the police. The battery on Plaintiff's cell phone was dead, so he asked to use a telephone to call his lawyer. This request was refused. While in Defendant's custody, Plaintiff paid $1,619.81 in what Defendant labeled "restitution." Upon payment, Plaintiff was released.
Plaintiff alleges that since the Video Casino opened in 2011, more than 500 individuals have been arrested on criminal mischief charges following accusations by the casino that they damaged the casino's machines. Even when the allegations are denied and the Video Casino offers no proof that a patron has done any damage, casino personnel detain patrons and offer them the "choice" of either paying "restitution"-in amounts ranging from $500 to over $1,500-or having casino personnel call the police. Plaintiff alleges that this effort to recover civil penalties from individuals accused of having caused damage to machines in the Video Casino constitutes, among other things, false imprisonment and larceny by extortion. Even where Defendant's employees properly suspect an individual of damaging casino property, Plaintiff alleges, Defendant is engaged in improper, and tortious, self-help.
The Motion Papers
In support of the motion and in opposition to the cross-motion, Plaintiff submits a personal affidavit, an attorney's affirmation, a proposed order, a notice of class action, a 2018 Seizure Report, a 2019 Seizure Report, and a memorandum of law. The 2018 Seizure Report details the First Detention, while the 2019 Seizure Report addresses the Second Detention and reflects Plaintiff's payment of $1619.81 in damages. In addition, in opposition to Defendant's cross-motion, Plaintiff submits a memorandum of law.
The facts set forth in Plaintiff's personal affidavit mirror the facts alleged in the complaint.
In support of the cross-motion and on reply, Defendant submits an attorney affirmation, a statement of material facts, a memorandum of law, and copies of the pleadings and discovery responses. Defendant also submits copies of Damage Reports-Accidental (findings of accidental damage on 10/2020, 09/2020 (2 incidents)), 2/2020, 5/2019, 3/2019, 4/2028, 1/2017, 8/2017, and 12/2016), and Damage Reports-Inconclusive (findings of cause of damage is inconclusive on 9/2017, 3/2019, 10,2017 (2 incidents)), July 2017 (2 incidents), June 2017, 1/2017, 12/2016 (2 incidents), 11/2016, 11/2017, 12/2017, 10/2020 (2 incidents, 11/2021, and 1/2018). In addition, Defendant provides a surveillance report of Plaintiff's First Detention, a copy of a deed, and a copy of the MOU.
Further, Defendant submits the Video Casino's reports on the First and Second Detentions and a "notice of trespass" based on the First Detention. The notice of trespass states that Plaintiff was excluded "until restitution is made." The report on the First Detention states that Plaintiff was "given a copy of a lifetime exclusion until restitution is paid."
Defendant also submits a copy of a "Bulletin No.22," which was issued to casino operators by the governing state agency, the Gaming Commission. Bulletin #22 specifically provides, in relevant part:
If... gaming equipment is damaged by a patron, then facility staff shall follow the procedures set forth below after first determining if the damage was caused recklessly or if the damage was accidental....
Following notification of damage and confirmation of the identity of the patron, the patron will be approached by Security... and brought to the Security area. Written reports are to be created... documenting the incident with surveillance footage retained for at least one year.... The determination of reckless versus accidental damage should be based upon surveillance coverage and statements from both staff and patrons.
....
As agents of the NYS Gaming Commission, gaming facilities are entrusted with the care of gaming equipment provided by licensed vendors under contract with the Gaming Commission. The facilities are expected to control their patrons and avoid damage to gaming equipment, other than nominal wear and tear. Facility staff will conduct interactions with patrons who damage equipment since the patrons are customers of the facility, not the vendors. Facilities are also in a better position to leverage patron behavior by enforcing exclusions from the gaming floor. As the manager of the property and the party in possession of the gaming equipment, facilities are able to file complaints against individuals who damage equipment and refuse to make restitution.
Facilities are expected to make a reasonable effort to collect restitution from offending patrons. The... Gaming Commission does not expect facilities to pursue legal claims or begin collection procedures if a patron refuses to make restitution. However, if a patron refuses to pay; provides a check that is subsequently returned for insufficient funds or a stop payment order; or rejects a credit card transaction, the facility is to exclude the patron until payment is made.
....
PROCEDURE 1: RECKLESS AND INTENTIONAL
When a patron has been positively identified as having recklessly damaged gaming equipment, the following procedures will be implemented depending on whether and when the patron intends to make restitution.
PATRON MAKING RESTITUTION
(1)... gaming staff... will give the patron the option to make immediate restitution for the damages. If the patron agrees to make immediate restitution... [the] vendor price list [will] determine the amount to be paid. In addition, [security] will prepare a [restitution form], which will document the amount to be paid and an acknowledgement of the patron's liability.
(2)The patron will be asked to sign the [restitution form]....
(3)[Security] will collect payment for the damages to the machine....
(4)After payment is tendered, patrons making restitution will be involuntarily excluded from the property for not less than a 48-hour period. Depending on the severity of the damage and the patron's behavior, the patron may be excluded for a longer period.
....
B.PATRON DECLINING TO MAKE IMMEDIATE RESTITUTION
(1)If a patron declines/refuses to make immediate restitution...:
(a)[Security] will inform the patron that criminal charges will be brought against him/her and the local police agency will be contacted to arrest the individual. [A] copy of relevant surveillance footage may be provided to the police department if requested.
(b)[Security] will have an involuntary exclusion report prepared, and [will] inform the patron that he/she is excluded from the casino property.... This exclusion must be until restitution is made, or 90 days, whichever is greater.
(c)[Security] will ensure the patron is given a copy of the involuntary exclusion form and the local police will be asked to arrest the patron and charge him or her with the appropriate criminal offense(s) as determined by the arresting officer....
Finally, Defendant submits an affidavit from its Vice President of Security, Timothy Pearson (the" Security Officer "), and an affidavit by Kent D. Vander Wal, Senior Attorney at the Gaming Commission (the" Gaming Attorney ").
The Gaming Attorney avers that the Gaming Commission drafts bulletins like Bulletin #22 with the purpose of establishing a means to communicate policies and procedures regarding information necessary for the Gaming Commission to administer video gaming. Information communicated through these bulletins is based on the legal authority of the Gaming Commission to implement procedures and administer video lottery gaming in the State of New York. As a licensed VLG Agent, Defendant is required to comply with instructions of the Gaming Commission. See 9 NYCRR § 5113.1(b)(2) (failure to comply with instructions could be grounds for VLG license suspension or revocation or fine). Bulletin #22 is such an instruction concerning a licensed activity.
Bulletin #22 was drafted on or about June 28, 2012, revised February 20, 2013, and has remained in effect since that time. The bulletin was drafted with the purpose of outlining the procedures to be implemented by all New York State-licensed VLG Agents in the event of patron damage to gaming equipment. Pursuant to Title 9, Section 5108.1(c)(3)(iv) and (v) of the New York Code of Rules and Regulations (" NYCRR "), an enumerated function of a VLG Agent's Security Department is the protection of the video lottery gaming facility from damage caused by illegal activity and the detainment of each individual as to whom there is probable cause to believe that he or she has engaged in or is engaging in unlawful conduct.
As outlined in Bulletin #22, a VLG Agent like Defendant is required to investigate thoroughly patrons suspected of damaging gaming equipment by bringing such suspected individuals to the security area. Restitution is to be sought and law enforcement is to be contacted to arrest patrons only in cases where the damage was found to be reckless or intentional following review of video footage. In cases where damage is found to be accidental, no further action is to be taken, and the individual is to be returned to the gaming floor. Hence it is Bulletin #22 that provides the authority and governing procedures to Defendant to retain patrons suspected of damaging equipment until restitution is paid or the police arrive.
In his affidavit, the Security Officer avers, in sum and substance, that during the First and Second Detentions, Defendant's security personnel followed the mandates of Bulletin #22. According to the Security Officer, the procedures set forth in Bulletin #22 are not optional but mandated by the Gaming Commission. Investigation is conducted by the Security Department in conjunction with Surveillance each and every time there is damage reported to gaming equipment.
Oftentimes, the investigation yields inconclusive findings as to the source of the damage or a conclusion that the cause of damage was accidental, in which case no further action is taken. In Plaintiff's case, the findings were clear and unmistakable. On January 12, 2018, a broken screen was reported. The total price for the screen including labor was $1,619.81. Surveillance was then notified and investigated the cause by reviewing video footage of the machine to identify the cause of the damage. As a result of this investigation, Plaintiff was identified by surveillance striking the video casino screen with open palms on both sides of the screen. Based upon this clear footage, Plaintiff's actions were deemed intentional, and restitution was sought from Plaintiff for the damage he caused.
After a personal review of the reports and video footage documenting the interactions between security personnel and Plaintiff on January 19, 2018, and August 9, 2019, the Security Officer concludes that the actions taken by security personnel were reasonable and necessary in furtherance of the duties owed by Defendant to seek restitution for the intentional damage done to New York State Lottery gaming equipment. Moreover, the actions taken by the Security Department were squarely in conformance with the New York State-mandated procedures set forth in Bulletin #22.
Finally, at oral argument, the parties agreed to the reasonableness of Defendant's actions in detaining Plaintiff in terms of the procedures followed, i.e., length etc., except that Plaintiff argues that the detentions were unreasonable to the extent that the demand of restitution was improper. Specifically, Plaintiff argues that he, and all Class Members, were injured by their detention for the time as Defendant improperly attempted to obtain direct payment from them for their alleged damage to Defendant's property. In essence, Plaintiff argues that Defendant violated the law by seizing Plaintiff and Class Members on the basis of "claimed but spurious legal authority" and was unjustly enriched by the funds it obtained in this manner. Furthermore, while Plaintiff denies breaking the screen, he does not allege or submit evidence that, in his case, Defendant failed to properly abide by the protocols of Bulletin #22 or, beyond the demand for restitution, acted unreasonably. A factual dispute does exist, however, as to whether Plaintiff was authorized to return to the casino on the date of the Second Detention.
In the moving brief, Plaintiff summarizes the factual and legal issues in the case as: "(1) Whether Defendant was authorized to hold Plaintiff and Class Members until they paid money to be released; (2) Whether Defendant engaged in or extended the detention of Plaintiff and Class Members to obtain money from them; (3) Whether Defendant was entitled to use self-help to obtain recoveries from Plaintiff and Class [M]embers instead of having recourse for this relief from the courts." (NYSCEF Doc. 40 at 12)
Discussion
Bulletin #22
At the foundation of Plaintiff's proposed class action complaint is the allegation that Bulletin #22 did not legally authorize Defendant's actions or serve as a shield for Defendant's decisions. Accordingly, the legal analysis herein begins with a determination of the authoritative impact of Bulletin #22 on the allegations in the complaint.
It is undisputed that the State of New York is the title holder of the Aqueduct Raceway and that the Video Casino is leased to Defendant pursuant to the MOU. It is also undisputed that the Gaming Commission licenses and governs the operation of video lottery gaming in New York State, including the Video Casino, in accordance with Article 34 of the Tax Law, Article 1 of the Racing, Pari-Mutuel Wagering and Breeding Law, and Subchapter A of Chapter IV of Title 9 of the NYCRR. It is also undisputed that Defendant functions as a VLG Agent of the Gaming Commission and one of its predecessor agencies, the Division of the Lottery.
The Gaming Commission's authority to enact binding regulations legally governing casino behavior is set forth in 9 NYCRR § 5100.1, which provides:
(a)The rules and regulations governing video lottery gaming are issued under and pursuant to the authority of the Lottery for Education Law (Article 34 of the Tax Law) and Article 1 of the Racing, Pari-Mutuel Wagering and Breeding Law.
(b)The purpose of this Subchapter is to set forth the manner in which the Gaming commission shall operate video lottery gaming.
(c)This subchapter pertains to video lottery gaming and is supplementary to those rules and regulations of general applicability promulgated by the Gaming Commission and the Division of Lottery regulations.
The Gaming Commission's broad authority is reaffirmed by 9 NYCRR § 5100.6, which provides that in "any matter not governed by these regulations, the commission shall exercise the commission's discretion so as to carry out the commission's purposes." Moreover, 9 NYCRR § 5100.8 states that all "powers not specifically defined in this Subchapter are reserved to the commission under the laws creating the commission and specifying the commission's powers and duties."
In furtherance of this authority, pursuant to 9 NYCRR § 5108.1(c)(3)(iv) and (v), an enumerated function of security is the protection of the video gaming facility from damage y and the detainment of individuals as to whom there is probable cause to believe that he or she has engaged in conduct that violates the Act or regulations, for the purpose of notifying law enforcement authorities. Specifically, the provision provides that
(3)A security department is supervised by a person referred to herein as a director of security. The security department shall be responsible for the overall security of the video lottery gaming facility including, without limitation, the following:
....
(iv)The protection of the patrons' and the video lottery gaming facility's property from illegal activity;
(v)The detainment of each individual as to whom there is probable cause to believe that he or she has engaged in or is engaging in conduct that violates the Act or these regulations inclusive, for the purpose of notifying appropriate law enforcement authorities.
It is clear that, under these regulations, the Gaming Commission is authorized to draft bulletins to communicate policies, procedures, and instructions regarding information necessary to administer video gaming, including the role of security in protecting gaming equipment and restraining patrons. Bulletin #22 was created by the Gaming Commission to provide such guidance to casinos such as Defendant, and it sets forth security provisions pursuant to the authority conferred under law and 9 NYCRR §§ 5100.1 and 5108.1. It is also undisputed that Defendant is required to comply with these instructions of the Gaming Commission. See 9 NYCRR § 5113.1(b)(2) (failure to comply with instructions could be grounds for license suspension or revocation or fine).
Hence, Bulletin #22 is a governing directive issued by the Gaming Commission. The Gaming Commission's authority to direct Defendant to detain individuals suspected of damaging video gaming property is rooted in law and Title 9 of the NYCRR. Pursuant to this legal authority, the Gaming Commission was empowered to issue regulations governing the procedures of the Video Casino such as Bulletin #22. Moreover, Defendant is required to follow the directives, such as Bulletin #22, that are issued by the Gaming Commission in accordance with this authority.
Accordingly, based on the law, the Court finds that Bulletin #22 is a binding legal directive on Defendant appropriately issued by the Gaming Commission pursuant to its statutory and regulatory authority. Furthermore, Defendant is required to follow the mandates of the Gaming Commission as set forth in Bulletin #22. Notably, there is no claim or legal basis submitted for finding that the New York State Legislature's delegation of authority to the Gaming Commission is unconstitutional. See Rocha v. Bakhter Afghan Halal Kababs, Inc., 44 F.Supp.3d 337 (E.D.NY 2014).
As previously noted, this is not an Article 78 proceeding challenging the Gaming Commission's authority or the scope of its regulations. See, e.g., Medical Professionals for Informed Consent v. Bassett, 78 Misc.3d 482 (NY Sup. Ct. Onondaga Cty. 2023).
To the extent that Plaintiff challenges this conclusion in a one-sentence argument in the opposition brief by claiming that Bulletin #22 conflicts with civil law and the New York State Constitution by denying patrons accused of damaging gaming machines due process (see NYSCEF Doc. 61 at 2), such an allegation is not set forth in the complaint. In any event, Plaintiff submits no legal authority or argument to support this vague, broad proposition, and therefore the contention is rejected.
In addition, Plaintiff's argument that Bulletin #22 is legally invalid because it is not a regulation also lacks merit. The New York State Constitution, as well as the State Administrative Procedure Act, mandate procedures that must be followed for the promulgation of rules and regulations, including the requirement of public comment. Excluded from these requirements applicable to the promulgation of rules and regulations are "interpretive statements and statements of general policy which in themselves have no legal effect but are merely explanatory." State Administrative Procedure Act § 102(2)(b)(iv); Roman Catholic Diocese of Albany v. N.Y.S. Dep't of Health, 66 N.Y.2d 948, 951 (1985).
As discussed, Bulletin #22 arises from law, the New York State Administrative Code, and 9 NYCRR §§ 5100.1 and 5108.1(c)(3). The law and regulations specifically provide that the casino Security Department is authorized to detain individuals as to whom there is probable cause to believe have engaged in conduct that violates the law or the regulations for the purpose of notifying law enforcement. Bulletin #22 is a plain-language interpretation of these general laws and regulations, is an interpretive statement of general policies, and is only explanatory. Bulletin #22 does not, therefore, constitute a regulation. Nor is a new regulation required. To the extent that Plaintiff broadly alleges otherwise, Plaintiff fails to submit any legal authority supporting the contention, and it lacks merit.
Furthermore, as for Plaintiff's brief claim that Bulletin #22 allows self-help and bodily seizure to enforce collection of civil debt in violation of the CPLR, Plaintiff fails to provide any applicable legal authority to support the argument, and it is rejected.
Hence, having determined that Bulletin #22 a valid directive that is legally binding on Defendant and governs and authorized certain actions taken by Defendant, the motion is resolved as follows.
Motion to Dismiss
Legal Standard
On a motion to dismiss pursuant to CPLR 3211(a)(7), a court's role is ordinarily limited to determining whether the complaint states a cause of action. Frank v. DaimlerChrysler Corp., 292 A.D.2d 118, 121 (1st Dep't 2002). "'The test on a motion to dismiss for insufficiency of the pleadings is not whether the plaintiff has artfully drafted the complaint but whether, deeming the complaint to allege whatever can be reasonably implied from its statements, a cause of action can be sustained .'" Pepler v. Coyne, 33 A.D.3d 434, 435 (1st Dep't 2006) (quoting Stendig, Inc. v. Thom Rock Realty Co., 163 A.D.2d 46, 48 (1st Dep't 1990)). When considering a motion to dismiss for failure to state a cause of action, the pleadings must be liberally construed. CPLR § 3026. The facts must be accepted as alleged in the complaint as true, and the court must accord a plaintiff the benefit of every possible favorable inference and determine only whether the facts as alleged fit into any cognizable legal theory. Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994); see also 885 3rd Ave. Realty Owners, LLC v. Alden Global Capital LLC, 210 A.D.3d 570, 571 (1st Dep't 2022); M.H.B. v. E.C.F.S., 177 A.D.3d 479, 480 (1st Dep't 2019) ("Whether plaintiffs can ultimately establish [their] allegations is not part of the calculus in determining a motion to dismiss." (internal quotation marks omitted));.
Factual allegations normally presumed to be true on a motion pursuant to CPLR 3211(a)(7), however, may properly be negated by affidavits and documentary evidence. See Ladera Partners, LLC. v. Goldberg, Scudieri & Lindenberg, P.C., 157 A.D.3d 467, 467 (1st Dep't 2018); Wilhemlina Models, Inc. v. Fleisher, 19 A.D.3d 267, 268-69 (1st Dep't 2005)."When documentary evidence is submitted by a defendant the 'standard morphs from whether the plaintiff stated a cause of action to whether it has one.'" Basis Yield Alpha Fund (Master) v. Goldman Sachs Grp., Inc., 115 A.D.3d 128, 135 (1st Dep't 2014) (quoting John R. Higgitt, CPLR 3211(A)(1) and (A)(7) Dismissal Motions-Pitfalls and Pointers, 83 NY St. B.J. 32, 33 (2011); John R. Higgitt, CPLR 3211(A)(7): Demurrer or Merits-Testing Device ?, 73 Albany L. Rev. 99, 110 (2009)). Dismissal is appropriate under these circumstances only where the documentary evidence flatly rejects a plaintiff's well-pleaded and cognizable claim, or conclusively establishes a defense to the asserted claims as a matter of law. Carlson v. Am. Int'l Grp., Inc., 30 N.Y.3d 288, 298 (2017); Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 (1977); Basis Yield Alpha Fund (Master), 115 A.D.3d at 135.
In applying these legal standards to this motion to dismiss, the court has considered the complaint and each party's submissions.
Notably, the facts set forth in the complaint and in Plaintiff's affidavit do not allege that Defendant violated the protocols of Bulletin #22, or that Defendant lacked reasonable grounds to detain Plaintiff initially, or that the method of the detentions were unreasonable in terms of whether the detentions were conducted in a reasonable manner or were for a reasonable duration of time. A factual question does exist as to the Second Detention, however, as Plaintiff alleges that he returned to the Video Casino with permission, and Defendant denies that Plaintiff had authority to return.
As for the specific causes of action alleged in the complaint, Plaintiff alleges claims against Defendant founded in General Business Law (" GBL ") § 349, larceny by extortion (conversion), false imprisonment, unjust enrichment, intentional infliction of emotional distress, negligence, abuse of process, and assault and battery. For relief, Plaintiff seeks an order certifying this action as a class action pursuant to Article 9 of the CPLR; issuing a preliminarily injunction enjoining Defendant from continuing to engage in the acts and practices described herein; ordering Defendant to pay money damages in an amount to be determined at trial; and granting an award of punitive damages and costs and attorneys' fees, including attorneys' fees pursuant to GBL § 349.
General Business Law § 349To state a claim under GBL § 349, a plaintiff must allege that: (1) the defendant has engaged in "consumer-oriented" conduct; (2) that conduct was materially misleading; and (3) the plaintiff suffered an injury as a result. Plavin v. Grp. Health Inc., 35 N.Y.3d 1, 10 (2020).
There is no dispute that criteria one and three are met.
As for the second criterion, while Defendant's actions during the First Detention as alleged were not misleading, the alleged facts of the Second Detention raise a different issue.
During the First Detention, Plaintiff was retained, arrested, and charged for allegedly breaking the video casino machine in accordance with the explicit mandates of Bulletin #22. As provided for in Bulletin #22, Plaintiff, as a patron who refused to make restitution, was excluded from the Video Casino. Said exclusion was" until restitution is made, or 90 days, whichever is greater." The criminal matter was resolved by the court. Nothing in the complaint alleges facts that demonstrate that these actions were misleading.
Importantly, under Bulletin #22, as the result of the First Detention and Plaintiff's refusal to pay restitution, Defendant was empowered to exclude Plaintiff from patronizing the Video Casino for a period of time. Nothing in Bulletin #22, however, appears to authorize the detention of Plaintiff a second time once he returned to the casino based on the same debt addressed by the earlier detention The available remedy for the second incident was, instead, expulsion or perhaps an allegation of trespass. Certainly, under principles of criminal law, Plaintiff could not be arrested and prosecuted a second time for the same alleged crime of breaking the video casino machine.
Moreover, Bulletin #22 specifically states that the casino is not expected to pursue legal claims or begin collection procedures if a patron refuses to make restitution, and yet, to the extent founded on the original damage to the video casino machine, the Second Detention appears to be a form of collection proceeding. As alleged, the casino personnel's statements that the casino was entitled to hold Plaintiff this second time, or to call the police again, based on the original video casino machine damage alone, was therefore misleading.
Furthermore, Plaintiff's allegation that he was cleared to return to the casino raises an issue of fact as to whether the return to the Premises was authorized. If Plaintiff was authorized to return, Defendant's actions were solely grounded in the collection of a debt. Hence, if Plaintiff was authorized to enter the casino as alleged in the complaint, Defendant's actions and statements during the Second Detention were misrepresentations.
Assuming the facts in the complaint are true, therefore, the complaint states a cause of action under GBL § 349 based on the Second Detention and the payment of restitution as part of that retention. See Orellana v. Macy's Retail Holdings, Inc., No. 17 Civ. 5192 (NRB), 2018 WL 3368716, at *12-15 (S.D.NY 2018).
Larceny by Extortion (Conversion)
To establish a cause of action for conversion, a plaintiff must show legal ownership or an immediate superior right of possession to a specific identifiable thing, and that defendant exercised unauthorized dominion over that thing to the exclusion of plaintiff's rights. NY Medscan, LLC v. JC-Duggan Inc., 40 A.D.3d 536, 537 (1st Dep't 2007); Fiorenti v. Cent. Emergency Physicians, PLLC, 305 A.D.2d 453, 454-55 (2d Dep't 2003). Tangible personal property or specific money must be involved. Fiorenti, 305 A.D.2d at 455.
Based on the allegations, for the reasons set forth above, the complaint states a cause of action of conversion arising from the Second Detention in the amount of $1,619.81.
False Imprisonment
New York State law provides that, to prevail on a cause of action alleging false arrest or imprisonment, a plaintiff must prove (1) intentional confinement by the defendants, (2) of which the plaintiff was aware, (3) to which the plaintiff did not consent, and (4) which was not otherwise privileged. Broughton v. State, 37 N.Y.2d 451, 456 (1975); Arrington v. Liz Claiborne, Inc., 260 A.D.2d 267, 267 (1st Dep't 1999). The statute of limitations for false imprisonment is one year, and it begins to run from the date on which the plaintiff is released from custody or confinement Williams v. CVS Pharmacy, Inc., 126 A.D.3d 890, 891 (2d Dep't 2015); Roche v. Vill. of Tarrytown, 309 A.D.2d 842, 843 (2d Dep't 2003).
For the reasons set forth above, the complaint fails to state a cause of action based on the First Detention. Furthermore, Plaintiff was released from police custody in January 2018, and the complaint was filed over a year thereafter on November 26, 2019. The cause of action based on the First Detention is therefore time barred.
By contrast, the Second Detention occurred on August 9, 2019, and the November 26, 2019 filing was therefore timely. Assuming the validity of the facts set forth in the complaint, questions exist as to the whether Defendant's actions during the Second Detention were privileged under Bulletin #22. Accordingly, the part of the cause of action that is based on the Second Detention is sustained.
Unjust Enrichment
Unjust enrichment requires allegations that the other party was enriched, at plaintiff's expense, and that it is against equity and good conscience to permit the other party to retain what is sought to be recovered. Georgia Malone & Co. v. Rieder, 86 A.D.3d 406, 408 (1st Dep't 2011). "The essential inquiry in any action for unjust enrichment or restitution is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered." Paramount Film Distrib. Corp. v. State of NY, 30 N.Y.2d 415, 421 (1972); Alan B. Greenfield, M.D., P.C. v. Long Beach Imaging Holdings, LLC, 114 A.D.3d 888, 889 (2d Dep't 2014).
Here, for the reasons set forth above, Plaintiff's cause of action for unjust enrichment for the $1,619.81 paid as restitution during the Second Detention is sustained.
Intentional Infliction of Emotional Distress
"To state a claim for intentional infliction of emotional distress a party must allege (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress." Drimer v. Zionist Org. of Am., 194 A.D.3d 641, 642 (1st Dep't 2021) (internal quotation marks and citation omitted). Whether or not the requisite outrageousness of the conduct has been satisfied by the allegations is, in the first instance, an issue of law for judicial determination . 164 Mulberry St. Corp. v. Columbia Univ., 4 A.D.3d 49, 56 (1st Dep't 2004).
For the reasons set forth above, Plaintiff's cause of action to recover damages for intentional infliction of emotional distress based on the First Detention is without merit. In any event, said claim is barred by the one-year statute of limitations. Gallagher v. Directors Guild of Am., Inc., 144 A.D.2d 261 (1st Dep't 1988) (holding that intentional tort of intentional infliction of emotional distress falls within one-year limitations period of CPLR § 215(3)), leave to appeal denied, 73 N.Y.2d 708 (1989); Kourkoumelis v. Arnel, 238 A.D.2d 313, 313 (2d Dep't 1997).
As for the Second Detention, assuming the allegations are true, at this early stage of the proceedings, the complaint states a cause of action for intentional infliction of emotional distress.
Negligence
To establish negligence, a plaintiff must show the following elements: (1) that a duty of care was owed by the defendant to the plaintiff; (2) breach of the duty; (3) proximate cause; and (4) damages. Alvino v. Lin, 300 A.D.2d 421, 421 (2d Dep't 2002).
Here, based on the allegations in the complaint, for the reasons set forth above, Plaintiff sets forth an individual claim for negligence based on the Second Detention only. See generally Neuman v. Century 21 Dep't Stores, LLC., 57 A.D.3d 329 (1st Dep't 2008); Conteh v. Sears, Roebuck & Co., 38 A.D.3d 314 (1st Dep't 2007). But see Sada v. Kohl's Dep't Stores, Inc., 79 A.D.3d 1121 (2d Dep't 2010).
Abuse of Process
In order to prevail on an abuse-of-process claim, the party bringing that claim must plead the following elements: (1) a regularly issued process, either civil or criminal; (2) 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 N.Y.2d 113, 116 (1984).
For reasons set forth herein, Plaintiff's claim of abuse of process based on the First Detention is dismissed. It is also time barred. Behrens v. City of Buffalo, 217 A.D.3d 1589, 1590 (4th Dep't 2023).
As for the Second Detention, it is undisputed that the police were not called and no legal process was commenced. As such, the cause of action fails to state a cause of action and is dismissed. See Williams v. Williams, 23 N.Y.2d 592 (1969); Bd. of Educ. of Farmingdale Union Free Sch. Dist. v. Farmingdale Classroom Teachers, 38 N.Y.2d 397 (1975 ); Lynn v. McCormick, 153 A.D.3d 688 (2d Dep't 2017); Cai v. Cohen, 79 Misc.3d 129 (A) (NY App. Term 2023 ); see also Orellana, 2018 WL 3368716, at *15-17.
Assault and Battery
Assault is defined as an intentional attempt or threat to do injury or commit a battery. Battery is intentional and wrongful physical contact with a person without his or her consent. A battery claim under New York State law requires proof that "there was bodily contact, that the contact was offensive, and that the defendant intended to make the contact without the plaintiff's consent." Bastein v. Sotto, 299 A.D.2d 432, 433 (2d Dep't 2002); see also Wieder v. Home Depot U.S.A., Inc., 208 A.D.3d 535 (2d Dep't 2022).
Based on the allegations, for the reasons set forth above, Plaintiff's claim of assault and battery based on the First Detention is dismissed. It is also time barred. CPLR 215(3). Williams, 126 A.D.3d at 891.
Based on the allegations in the complaint and the fact that discovery has yet to be conducted, the cause of action as directed to the Second Detention is sustained.
Class Certification
In light of the legal conclusions set forth herein, the proposed class is inapplicable to the remaining causes of action, and the motion is denied with leave to renew. See generally Cooper v. Sleepy's, LLC, 120 A.D.3d 742 (2d Dep't 2014).
The Court has considered any additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by the parties was not addressed by the Court, it is hereby denied.
Accordingly, it is hereby
ORDERED that the motion of plaintiff PREN MRIJAJ (Mot. Seq. 2) seeking an order, pursuant to CPLR 901 and 902, certifying a class action is DENIED with leave to renew; and it is further
ORDERED that the cross-motion of defendant GENTING NEW YORK LLC. D/B/A RESORTS WORLD CASINO NEW YORK CITY (Mot. Seq. 2) seeking an order, pursuant to CPLR 3211(a)(7), dismissing the complaint and proposed class action is GRANTED IN PART only to the extent set forth herein; and it is further
ORDERED that Motion Sequence 3 is withdrawn; and it is further
ORDERED the Clerk shall mark Motion Sequences 2 and 3 decided in all court records.
This constitutes the decision and order of the Court.