Opinion
608443/16
11-09-2018
Ori COHEN, Plaintiff(s), v. Camille D. PICINI, Kyriaki Katrakazos and Eleni C. Manitaras, Defendant(s).
Meir Moza, Esq., 217 Willis Avenue, Ste. 101, Mineola, NY11501, 516-741-0003, 5167410033@fax.nycourts.gov, Attorneys for Plaintiff Mulholland Minion Davey McNiff & Bayrer, 374 Hillside Avenue, Williston Park, NY11596, 516-248-1200, 5162481225@fax.nycourts.gov, Attorney for Defendant Picini Nicolini Paradise Ferretti & Sabella 114 Old Country Road, Ste. 500, Mineola, NY11501, 516-741-6355, 5167411659@fax.nycourts.gov, Attorneys for Defendant Manitaras Devitt Spellman Barrett, LLP, 50 Route 11, Smithtown, NY1177, 631-724-8833, 6317248010@fax.nycourts.gov, Attorneys for Defendant Katrakazos
Meir Moza, Esq., 217 Willis Avenue, Ste. 101, Mineola, NY11501, 516-741-0003, 5167410033@fax.nycourts.gov, Attorneys for Plaintiff
Mulholland Minion Davey McNiff & Bayrer, 374 Hillside Avenue, Williston Park, NY11596, 516-248-1200, 5162481225@fax.nycourts.gov, Attorney for Defendant Picini
Nicolini Paradise Ferretti & Sabella 114 Old Country Road, Ste. 500, Mineola, NY11501, 516-741-6355, 5167411659@fax.nycourts.gov, Attorneys for Defendant Manitaras
Devitt Spellman Barrett, LLP, 50 Route 11, Smithtown, NY1177, 631-724-8833, 6317248010@fax.nycourts.gov, Attorneys for Defendant Katrakazos
Jeffrey S. Brown, J.
The following papers were read on this motion:/Papers Numbered
Notice of Motion, Affidavits (Affirmations), Exhibits Annexed 44, 62, 74, 115
Answering Affidavit 118,146, 151
Reply Affidavit 145, 149, 154
Defendants Camille Picini, Kyriaki Katrakazos, and Eleni C. Manitaras move pursuant to CPLR 3212 for an order granting summary judgment and dismissing the plaintiff's complaint in its entirety. Plaintiff opposes these motions and cross-moves for an order striking an affidavit submitted by defendants in support of their motions from a State Farm Mutual Insurance Company (State Farm) employee.
This action arises out of an alleged "hit and run" accident which occurred and was reported to the Nassau County Police on April 23, 2014. The defendants reported that another vehicle hit the rear of defendant's motor vehicle and left the scene of the accident. The police were provided with a license plate number. On or about April 25, 2014, a police officer came to plaintiff's home and an investigation ensued. On May 10, 2014, upon being contacted by the police again, plaintiff reported to the police station and was released with a desk appearance ticket. On May 17, 2014, plaintiff was issued two more summonses requiring him to appear in court. A seven-day bench trial was held and the plaintiff was acquitted of all the charges on April 18, 2016.
By decision and order dated April 18, 2017, the court dismissed all causes of action in the complaint save for plaintiff's claim for malicious prosecution. The court noted plaintiff's allegation that defendant Katrakazos's mother reported an accident to her insurance company approximately 9 hours and 37 minutes prior to the collision on April 23, 2014. A call to the Nassau County Police emergency services was placed reporting a hit and run at approximately 5:37 p.m. on that day. Taking all of the plaintiff's allegations as true, the court found that the cause of action for malicious prosecution was adequately pled and discovery proceeded.
"It is well established that ‘the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.’ ( Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ; see also William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh , 22 NY3d 470, 475-476 [2013] ; CPLR 3212[b] ). Once the movant makes the proper showing, ‘the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action’ ( Alvarez , 68 NY2d at 324 ). The ‘facts must be viewed in the light most favorable to the non-moving party’ ( Vega v. Restani Constr. Corp. , 18 NY3d 499, 503 [2012] [internal quotation marks omitted] ). However, bald, conclusory assertions or speculation and ‘[a] shadowy semblance of an issue’ are insufficient to defeat summary judgment ( S.J. Capelin Assoc. v. Globe Mfg. Corp. , 34 NY2d 338, 341 [1974] ), as are merely conclusory claims ( Putrino v. Buffalo Athletic Club , 82 NY2d 779, 781 [1993] )."
( Stonehill Capital Management, LLC v. Bank of the West , 28 NY3d 439 [2016] ; see also Fairlane Financial Corp. v. Longspaugh , 144 AD3d 858 [2d Dept 2016] ; Phillip v. D & D Carting Co.Inc. , 136 AD3d 18 [2d Dept 2015] ).
As explained in the court's prior decision, a cause of action for malicious prosecution requires (1) the initiation of a proceeding, (2) its termination favorably to plaintiff, (3) lack of probable cause, and (4) malice. ( Du Chateau v. Metro-North Commuter R.R. Co. , 253 AD2d 128 [1st Dept 1999] ). Although "a civilian complainant, by merely seeking police assistance or furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution" ( Du Chateau , 253 AD2d at 131 ), where false information is provided in a criminal complaint, liability may attach. (See id. at 132 ; see also Boose v. City of Rochester , 71 AD2d 59, 69 [4th Dept 1979] ). Indeed, "the plaintiff may show malice and overcome the presumption of probable cause with proof that the defendant falsified evidence in bad faith and that, without the falsified evidence, the authorities' suspicion of the plaintiff would not have fully ripened into probable cause." ( Torres v. Jones , 26 NY3d 742 [2016] ). In sum, actual malice requires that the defendant "commenced the prior criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served." ( Du Chateau , 253 AD2d at 132 [quotations omitted]; see also Matthaus v. Hadjedj , 2017 WL 809864 [1st Dept March 2, 2017] ; Boose , 71 AD2d at 69 ). It may be supported by circumstantial evidence. ( Maxwell v. City of New York , 156 AD2d 28 [1st Dept 1990] )
In support of their motions, defendants submit the transcripts of the plaintiff's deposition, as well those of the defendants. Defendants also rely upon photographs of damage to Katrakazos's car and of plaintiff's license plate, the testimony of Police Officer Dolan and Detective Roas at plaintiff's criminal trial, and various documents provided by State Farm.
Plaintiff testified that during the afternoon of April 23, 2014, he went to the Rallye Motors car dealership on Northern Boulevard in Roslyn, New York. He was there to exchange his old leased vehicle for a new grey Mercedes GL 450. Plaintiff left the dealership at some time between 4:30 p.m. and 5:30 p.m, whereupon he turned right onto Northern Boulevard heading toward Glen Cove Road. He testified that he stopped at the Home Depot and noticed that the Mercedes emblem was missing from the front of his vehicle. He called Rallye Motors and reported the missing emblem, which was replaced the following day.
Defendant Katrakazos testified that she, along with co-defendants Manitaras and Picini, were students at the New York Institute of Technology at the time of the accident. On the date of the incident, she went to the library to study for a test. The trio decided to take a dinner break and go to La Bottega in Roslyn, New York. After eating, defendants intended to head back to NYIT. Katrakazos was the driver, Manitaris was the front-seat passenger, and Picini was sitting in the rear behind Manitaris. Just prior to the accident, Katrakazos was stopped at a red light at the intersection of Northern Boulevard and Forest Street. After she felt an impact to the rear of her vehicle, Katrakazos looked in the rear-view mirror and observed a grayish blue Mercedes directly behind her car. Katrakazos pulled over to the right shoulder lane to exchange information with the driver of the Mercedes but the vehicle continued driving. She pulled back into traffic to follow the vehicle.
Defendant Katrakazos testified that the following day, she returned to the scene of the accident and found a Mercedes emblem, which she turned into the police.
Defendant Picini likewise testified that she turned around immediately after the impact, and observed a "gray blue" Mercedes SUV out of the rear view mirror.
Defendant Manitaras testified that she observed a silver Mercedes with a bluish tint drive past the left side of Katrakazos' car just after the impact. She took a photo of the license plate with her cell phone and then called 911. The 911 operator instructed the defendants to pull over into a parking lot and the police arrived shortly thereafter. At the scene, Police Officer Dolan asked Manitaras to email him the photograph of the license plate, which she did.
It is undisputed that defendants Katrakazos and Manitaras signed police statements and all three defendants participated in the criminal prosecution of the plaintiff.
According to the criminal trial testimony of Officer Dolan, after the accident, he went to St. Francis Hospital to obtain written statements from the defendants. Later that day, he went to plaintiff's home and noted a car parked in the driveway with a license plate that matched the photograph provided by Manitaras. He knocked on the door but there was no answer. Upon inspection of plaintiff's car, Officer Dolan noticed that the emblem was missing from the front of the vehicle. He took a photo of the vehicle and noted no other damage. He returned to Northern Boulevard to see if he could locate a Mercedes Benz symbol on the street but did not find one. His part of the investigation ended that day.
Thereafter, the matter was assigned to Detective Rios and Detective Guerrara, who appeared at plaintiff's home on April 25, 2014 to speak with the plaintiff, and again on April 27, 2014 to give the plaintiff a desk appearance ticket. Detective Rios testified at plaintiff's criminal trial that he had probable cause at that time to arrest the plaintiff immediately, but gave the plaintiff the opportunity to turn himself in. Detective Rios testified that on April 24, 2014, defendant Katrakazos provided him with a Mercedes emblem. He did not meet the defendants in person but spoke with them by telephone.
The photograph of defendant's vehicle reveals scratches on the trunk suggestive of a circular shape.
A screen shot of State Farm's file provides that the date of loss was April 23, 2014 and the time of loss was 5:37 p.m. Further, in support of their motions, defendant's submit the affidavit of Rachel Santiago, a claims representative for State Farm, who states in relevant part that a computer generated form used by State Farm to provide information to auto body repair shops will input 8:00 a.m. as the time of the accident, where the exact time is not reported or entered into the system. Plaintiff contends that this exhibit should be stricken because the State Farm witness who prepared the affidavit was not disclosed during the course of discovery. Neither party has furnished a discovery demand to establish requests that would have required such disclosure. In this regard, cases cited by the plaintiff concerning accident eyewitnesses or notice witnesses are distinguishable.
Nevertheless, the admissibility of the factual statements contained in the Santiago affidavit has not been established by the proponents of the affidavit. Moreover, the affidavit indicates that it was taken in the State of Pennsylvania but, oddly, was notarized in New York and does not contain a certificate of conformity pursuant to CPLR 2309 (c). Thus, the court disregards the affidavit in connection with the instant motion.
In opposition, plaintiff relies upon the transcript of his criminal trial, his own deposition and the depositions of the defendants, the relevant photographs at issue in this case, the 911 recording, a receipt and a letter from Rallye Motors in Roslyn, New York, which indicate that the plaintiff reported a missing emblem, as well as cables. Additionally, plaintiff relies on reports from the police and district attorney and on letters and photographs from his insurance company indicating that there was no damage to the vehicle when it was inspected on May 8, 2014.
Plaintiff contends that he was arrested without probable cause based upon a false police report and evidence provided to the police by the defendants. Plaintiff further contends that there are inconsistencies between the facts defendants reported to law enforcement and those testified to at plaintiff's criminal trial. In particular, plaintiff relies on testimony from defendant Katrakazos, arguing that she "admits that she called Detective Rios about the emblem and that Officer Dolan spoke with her father about the Mercedes Benz emblem and that her family owned the same exact model vehicle as the plaintiff." The entirety of defendant Katrakazos's testimony indicates that at the time she had located the emblem at the following day, she had not spoken to Officer Dolan and did not know that the defendant's car was missing a Mercedes emblem. She testified that she called Detective Rios and then dropped the emblem off for him. Defendant later indicated that Officer Dolan might have spoken to her father on the night of the accident but that she did not know the substance of their conversation.
Further, plaintiff places much emphasis on the audio recording of the 911 call, which continues after the conversation with the 911 operator disconnected and an occupant in the car can be heard as saying "no one is hurt." The rest of the conversation is not heard and, if anything, this recording corroborates that there was, in fact, a collision.
On this record, defendants have established a prima facie entitlement to judgment as a matter of law. Evidence that the defendants falsified evidence to the police and other law enforcement officials is lacking. That a single form document from State Farm indicating that the accident occurred at 8:00 a.m., rather than at about 5:30 p.m. and that Officer Doyle was unable to locate a Mercedes emblem upon return to the area of the accident does not raise an inference of falsification of evidence. Although evidence of malice may be circumstantial, wholesale speculation and conjecture cannot defeat summary judgment. (See Strange v. County of Westchester , 29 AD3d 676 [2d Dept 2006] ; Schwegler v. City of Niagra Falls , 21 AD3d 1268 [4th Dept 2005] ; see also Healey v. Firestone Tire & Rubber Co. , 87 NY2d 596, 601-602 [1996] ). Thus, there is no evidence to support the contention that the defendants' actions effectively took the decision to prosecute the plaintiff out of the hands of law enforcement officials. Moreover, even if the defendants were mistaken about the vehicle that struck them from behind, a mistake is insufficient to support a finding of malicious intent. For these reasons, the defendants' motions for summary judgment must be granted.
For the foregoing reasons, it is hereby
ORDERED, that the defendants' motions for summary judgment (motion seq. nos. 3, 4, and 5) are granted; and it is further
ORDERED, that the plaintiffs' cross-motion (motion seq. 6) to strike is denied as academic.
This constitutes the decision and order of this Court. All applications not specifically addressed herein are denied.