Opinion
10537 Index 150596/18
12-12-2019
Thomas K. HOLMES, Plaintiff–Appellant–Respondent, v. The CITY OF NEW YORK, Defendant, The Gap, Inc., Defendant–Respondent–Appellant.
The Layton Law Firm, PLLC, New York (Paul Biedka of counsel), for appellant-respondent. McAndrew, Conboy & Prisco, LLP, Melville (Mary C. Azzaretto of counsel), for respondent-appellant.
The Layton Law Firm, PLLC, New York (Paul Biedka of counsel), for appellant-respondent.
McAndrew, Conboy & Prisco, LLP, Melville (Mary C. Azzaretto of counsel), for respondent-appellant.
Renwick, J.P., Gische, Mazzarelli, Moulton, JJ.
Order, Supreme Court, New York County (Verna L. Saunders, J.), entered December 12, 2018, which, to the extent appealed from as limited by the briefs, granted defendant The Gap, Inc.'s motion to dismiss plaintiff's cause of action against it for negligent infliction of emotional distress, and denied its motion to dismiss plaintiff's causes of action against it for false arrest and malicious prosecution, unanimously modified, on the law, to grant the motion dismissing the causes of action for false arrest and malicious prosecution and otherwise affirmed, without costs.
Contrary to plaintiff's argument, extreme and outrageous conduct is an essential element of a cause of action alleging the negligent infliction of emotional distress (see Melendez v. City of New York, 171 A.D.3d 566, 567, 98 N.Y.S.3d 178 [1st Dept.], lv denied 33 N.Y.3d 914, 2019 WL 4383502 [2019] ). A civilian complaint, 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 charge filed, does not provide a basis for false arrest or malicious prosecution (see Du Chateau v. Metro–North Commuter R.R. Co., 253 A.D.2d 128, 131, 688 N.Y.S.2d 12 [1st Dept. 1999] ).
We have considered the parties' remaining contentions, and find them unavailing.