Opinion
No. 19692/2008.
2010-12-13
Wilman RESTREPO, Plaintiff, v. HOME DEPOT U.S.A., INC., Defendant.
ROBERT L. NAHMAN, J.
The motion and cross-motion are determined as follows:
This action arises out of events that occurred on February 23, 2008 at a Home Depot retail establishment operated by the defendant at 124–04 31st Avenue, Flushing, New York. On that date, the plaintiff entered the premises at approximately 11:00 a.m. with his wife and daughter. The plaintiff testified at his deposition that when he arrived at the Home Depot he returned certain plumbing related items that he had purchased at an earlier time and then went to do more shopping. The plaintiff averred that he brought the items he returned to the store in a plastic Home Depot bag.
Vincent Rosa (“Rosa”), a loss prevention investigator employed by the defendant on the day of the incident, testified at his deposition that he received a call from another Home Depot employee that she saw a man in the plumbing aisle putting items into a plastic Home Depot bag. Rosa averred that he went to the aisle in question and observed a person who fit the description he had been given. Rosa stated that the individual he saw was the plaintiff, who was alone, and that he observed the plaintiff, who was approximately ten feet away, take a “3–T” plumbing item off the shelf, rip the package open and place the item in his pocket.
Rosa stated that he followed the plaintiff to the check out area saw him pay for certain items and attempt to exit the store. As the plaintiff attempted to exit the store with his wife and daughter, Rosa testified that he approached the plaintiff and stated that he needed to speak with him. Under questioning from the plaintiff's counsel, Rosa repeatedly denied physically touching the plaintiff at that time. However, when questioned by the defendant's counsel, he acknowledged that he grabbed the plaintiff's forearm and escorted him back into the store. Rosa testified that, without the use of profanity, he asked the plaintiff to accompany him to the security office, and that the plaintiff did so voluntarily.
In the office, Rosa averred he told the plaintiff to empty his pockets and produce identification. The plaintiff complied and Rosa asserted that he began filling out the paperwork required by Home Depot in the case of an alleged shoplifting incident. Included in the contents of the plaintiff's pocket was the item Rosa allegedly saw the plaintiff take that he described as a three to four inch copper fitting which was not labeled in any way.
Rosa stated that he filled out two documents, an “apprehension report” and a “voluntary statement”. The latter document was given to the plaintiff which Rosa claims he signed of his own free will. Rosa acknowledged that he completed the “voluntary statement” and that the only writing the plaintiff placed on the document was his signature. The “voluntary statement”, annexed to the moving papers, is a preprinted form that contains handwritten pedigree information about the plaintiff and the date of the incident. In particular, the statement contains the following:
“Wilman [sic] Restrepo, residing at 23–11 Parsons Blvd Whitestone, and knowing that I do not need to make a statement and that this statement may be used against me, make this statement of my own free will. I have not been threatened or coerced into making this statement and no promises or representations have been made to me in exchange for making this statement.
I admit that on 2–23–08, I knowingly took from Home Depot the following merchandise without making payment and with the intention to deprive Home Depot of its right in the merchandise.”
The document also contained a handwritten description of the item allegedly taken, an identifying code number and a price for the item.
After the paperwork was completed, Rosa stated that the plaintiff was released. Rosa stated that the police were not called because it was Home Depot policy not to do so in cases of theft of less than $20.00 where the suspect produces identification. The apprehension report completed by Rosa and identified by him at the deposition states that the plaintiff was stopped at 11:55 a.m. and released at 12:10 p.m.
Rosa testified that on the day of the incident, Home Depot had a closed-circuit video system that recorded certain areas of the store. Rosa averred that a video camera was positioned at the entrance as well as the checkout and return areas and that all events at the exit were recorded by the system. Rosa acknowledged that he reviewed the footage and that he made a separate copy of the stop of the plaintiff on the system, a process he referred to as “ad hoc”. Rosa stated that the database of the video system only holds three to six months of recordings.
On the other hand, plaintiff's version of the events differs significantly. The plaintiff testified that when he encountered Rosa at the exit, Rosa was yelling at him from behind and called him a “freaking thief” and stated “you thought you could get away with it”. The plaintiff averred that Rosa then grabbed his arm, turned him around and pulled him back into the store by his shoulder. After Rosa released him, the plaintiff stated he accompanied Rosa to a video surveillance room where he was told to empty his pockets. The plaintiff testified Rosa accused him of stealing and indicated the contents on the table contained the part he purportedly attempted to steal. However, the plaintiff claimed that he had brought the part he was shown from home. Moreover, the plaintiff asserted that he purchased the part at another store as part of a kit and that Home Depot did not sell that part.
Although the plaintiff admitted signing the “voluntary statement”, he averred that he was forced to do so against his will. The plaintiff claimed that Rosa said that he could not read the statement and that if he did not sign it Rosa would “put the cuffs” on the plaintiff and that the plaintiff would “spend the weekend in jail”. The plaintiff claimed that the first time he saw the top part of the “voluntary statement” was at his deposition. The plaintiff claims that he was released after signing the statement and that he was confined for a total of two hours.
After his release, the plaintiff contended he went home, obtained the receipt for the allegedly stolen part, the kit in which it was contained and returned to the Home Depot in an attempt to exonerate himself. The plaintiff claims he spoke to a manager at the Home Depot and that he accompanied her to the plumbing aisle where she confirmed to him that Home Depot did not sell the item he allegedly stole. The plaintiff testified that he also returned to the Home Depot the next day to speak to the manager's boss. In addition, the plaintiff stated that he called Home Depot's corporate headquarters in Atlanta to make a complaint and was given a complaint notice number.
In the pleading filed with the Queens County Clerk's Office on August 8, 2008, the plaintiff asserts causes of action for false arrest, wrongful imprisonment, assault, battery, negligent hiring, negligent retention, negligent training, violation of civil rights and malicious prosecution.
In support of the motion for summary judgment, the defendant relies on section 218 of the General Business Law which offers proprietors of retail mercantile establishments a defense to claims of “false arrest, false imprisonment, unlawful detention, defamation of character, assault, trespass ... [and] invasion of civil rights” which arise out of the detention of an alleged shoplifter ( See,GBL § 218; Watkins v. Sears Roebuck & Company, 289 A.D.2d 73). In particular, the statute provides that “it shall be a defense to such action that the person was detained in a reasonable manner and for not more than a reasonable time to permit such investigation or questioning by a peace officer acting pursuant to his special duties, police officer or by the owner of the retail mercantile establishment” (GBL § 218). Utilization of the defense is conditioned on the ground that the employee of the retail establishment “had reasonable grounds to believe that the person so detained ... was committing or attempting to commit larceny on such premises of such merchandise” ( Id ). Reasonable grounds, as applicable in the case at the bar, is defined in the statute as “knowledge that a person ... has concealed possession of unpurchased merchandise of a retail mercantile establishment” ( Id ).
The defendant established prima facie the applicability of a defense under General Business Law § 218. The defendant demonstrated that Rosa had “reasonable grounds” to stop and detain the plaintiff with the eyewitness testimony of Rosa and the “voluntary statement” which the plaintiff confirmed he signed in his deposition ( See, Jacques v. Sears, Roebuck & Company, Inc., 30 N.Y.2d 466). The defendants also established that the manner in which the plaintiff was detained was reasonable under the circumstances ( See, Watkins v. Sears Roebuck & Company, supra) and that the plaintiff was detained for a reasonable period of time ( See, Bell v. Gap, Inc., 189 Misc.2d 719).
In opposition, however, the plaintiff demonstrated with his testimony that there are issues of fact as to whether Rosa had “reasonable grounds” to stop and detain the plaintiff under the circumstances and whether the period of time he was detained was also reasonable. The plaintiff's testimony that the part that Rosa showed and accused the plaintiff of stealing was brought from home sufficiently contradicts the Rosa testimony. Concerning the “voluntary statement”, the plaintiff's testimony that he was not permitted to read the document and threatened with custodial arrest and imprisonment is sufficient to call the voluntariness of the statement into question and raise an issue of duress for the trier of fact to determine ( See, Willig v. Rapaport, 81 A.D.2d 862;see also, In re Guttenplan, 222 A.D.2d 255;Kranitz v. Strober Organization, Inc., 181 A.D.2d 441).
The plaintiff also raised an issue of fact as to the reasonableness of the length of the detention with his testimony, which contradict's the evidence in the “apprehension report”, that he was detained for two hours. Considering the relatively small nature of the alleged crime, the cursory nature investigation done by Rosa and the fact that the police were not called raises issues as to whether the two hour period of detention claimed by the plaintiff was not reasonable. The plaintiff's reliance on Richardson v. New York Univ., 202 A.D.2d 295 for authority is misplaced as decisions of the Appellate Division, First Department are not binding on this court. Additionally, the issue of the reasonableness of the length of the detention in that case was not expressly addressed in the decision.
The plaintiff's claims for negligent hiring, negligent retention and/or negligent training are dismissed as “the record was devoid of any evidence that [the defendant] knew or should have known of [Rosa's] propensity for the conduct which caused the injury” (Cherry v. Tucker, 5 AD3d 422;see also, Kelly v. City of New York, 16 AD3d 463;Sato v. Correa, 272 A.D.2d 389). In any event, even if the defendant had reported this matter to the police, a non-governmental entity reporting a matter to the police which results in a prosecution generally can not form the basis of a malicious prosecution claim ( See, Du Chateau v. Metro–North Commuter R.R. Co., 253 A.D.2d 128, 131)
The plaintiff's claim for malicious prosecution also fails as a matter of law since it is absolutely undisputed no criminal proceeding was commenced by the defendant against the plaintiff ( See generally, Fortunato v. City of New York, 63 AD3d 880). Indeed, the police were not even called in this case.
Accordingly, the defendant's motion for summary judgment is granted only to the extent that the plaintiff's causes of action for negligent hiring, negligent retention, negligent training and malicious prosecution are dismissed. The motion for summary judgment is denied in all other respects.
Turning to the cross-motion, the plaintiff seeks to have the defendant's answer stricken pursuant to CPLR § 3126 based upon the defendant's alleged spoliation of the surveillance recordings of the day of the incident and the package that Rosa testified he saw the plaintiff rip open.
Where a party negligently or intentionally destroys essential physical evidence “such that its opponents are prejudicially bereft of appropriate means to confront a claim with incisive evidence,' the spoliator may be sanctioned by the striking of its pleading” (New York Cent. Mut. Fire Ins. Co. v. Turnerson's Elec., 280 A.D.2d 652, 653,quoting DiDomenico v. C & E Aeromatik Supplies, 252 A.D.2d 41, 53). Even in situations where “the evidence was destroyed before the spoliator became a party, [a sanction may justified] provided [the offender] was on notice that the evidence might be needed for future litigation” (DiDomenico v. C & S Aeromatik Supplies, Inc., 252 A.D.2d 41, 53;see also, Std. Fire Ins. Co. v. Fed. Pac. Elec. Co., 14 AD3d 213, 220). Where, however, the evidence lost is not central to the case, or its destruction is not prejudicial a sanction may not be appropriate ( See, Klein v. Ford Motor Co., 303 A.D.2d 376;Madison Avenue Caviarteria v. Hartford Steam Boiler Inspection & Insurance Company, 2 AD3d 793, 796;Mylonas v. Town of Brookhaven, 305 A.D.2d 561, 563). Ultimately, the determination of spoliation sanctions is within the broad discretion of the court ( See, Barahona v. Trustees of Columbia Univ., 16 A.D.2d 445).
In this case, it is undisputed that the defendant is no longer in possession of either the video recording taken of the plaintiff on the day of incident or the ripped package. Although there is sufficient evidence to indicate that the action may have been commenced prior to the destruction of the video recordings and there was enough information available to the defendant on the day of the incident to indicate that these materials “might” become necessary in the future, the court is persuaded that the loss of these materials was negligent rather than intentional. The loss of the above evidence also has not left the plaintiff bereft of the means to establish a prima facie case against the defendants at trial, especially as the ripped packaging or removal of the item in question was not on the video. Since the video of the events at the door is not central to the plaintiff's case, is indicative of very little and would not negate the defendant's claims of shoplifting in this matter, the sanction of striking the defendant's answer is not warranted under the circumstances ( See, Mylonas v. Town of Brookhaven, supra).
Accordingly, the branch of the plaintiff's cross-motion to strike the defendant's answer is denied.
The branch of the plaintiff cross-motion to restore this matter to the trial calendar is granted to the extent that the plaintiff may file a new note of issue forthwith.