Summary
In Neuman v. Echevarria, 2019 WL 1461788 (2d Dept. 2019), the Supreme Court, Appellate Division Second Department reiterated the standard to be applied in determining a motion to dismiss for failure to state a cause of action pursuant to CPLR §3211(a)(7).
Summary of this case from Santora v. Bedford Cent. Sch. Dist.Opinion
2017–00662 Index No. 703432/16
04-03-2019
Marvin NEUMAN, Respondent, v. David ECHEVARRIA, Defendant, Richard Capuano, Appellant.
Kenneth D. Litwack, Bayside, NY, for appellant. Michael G. O'Neill, New York, NY, for respondent.
Kenneth D. Litwack, Bayside, NY, for appellant.
Michael G. O'Neill, New York, NY, for respondent.
WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for false arrest and assault, the defendant Richard Capuano appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), dated December 1, 2016. The order, insofar as appealed from, denied those branches of that defendant's motion which were pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint insofar as asserted against him based upon res judicata, collateral estoppel, and failure to state a cause of action.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff encountered a tow truck that was in the process of towing his vehicle for Scofflaw violations. The defendant Richard Capuano (hereinafter the defendant), a New York City Marshal, and three other individuals from a private tow company were overseeing the towing process. The plaintiff alleged that two of the three individuals who were with the defendant assaulted him and then left the scene with the defendant. The plaintiff called the police, who, after locating the defendant and speaking with him, arrested the plaintiff for obstruction of governmental administration. The charges were ultimately dismissed.
The plaintiff commenced an action in the United States District Court for the Eastern District of New York against, among others, the defendant, alleging that the defendant violated 42 USC § 1983 and state common law in relation to the plaintiff's arrest and the alleged assault against him. The defendant moved to dismiss the federal action insofar as asserted against him, and the federal district court granted the motion to the extent of dismissing the 42 USC § 1983 causes of action. The federal district court declined to exercise jurisdiction over the state common-law causes of action.
The plaintiff subsequently commenced this action, alleging, inter alia, false arrest and assault against, among others, the defendant. The defendant moved, inter alia, pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint insofar as asserted against him on the grounds of res judicata, collateral estoppel, and failure to state a cause of action. The Supreme Court denied the defendant's motion, and the defendant appeals.
Since the federal court did not assume jurisdiction over the plaintiff's pendent state law causes of action, they are not barred by res judicata (see Van Hof v. Town of Warwick, 249 A.D.2d 382, 671 N.Y.S.2d 144 ; Mattes v. Rubinberg, 220 A.D.2d 391, 632 N.Y.S.2d 793 ; Creative Bath Prods. v. Connecticut Gen. Life Ins. Co., 173 A.D.2d 400, 570 N.Y.S.2d 31 ; Bacon v. County of Westchester, 149 A.D.2d 451, 539 N.Y.S.2d 951 ). Furthermore, they are not barred by collateral estoppel, as the federal court did not decide issues identical to those raised by the plaintiff's state law causes of action (see Bacon v. County of Westchester, 149 A.D.2d 451, 539 N.Y.S.2d 951 ; cf. Karimian v. Time Equities, Inc., 164 A.D.3d 486, 488–489, 83 N.Y.S.3d 227 ).
"When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action" ( Sokol v. Leader, 74 A.D.3d 1180, 1180–1181, 904 N.Y.S.2d 153 ; see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ). "In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Sokol v. Leader, 74 A.D.3d at 1181, 904 N.Y.S.2d 153 [internal quotation marks omitted]; see Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720 ; Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). " ‘Whether a plaintiff can ultimately establish its allegations is not part of the calculus’ " ( Sokol v. Leader, 74 A.D.3d at 1181, 904 N.Y.S.2d 153, quoting EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 ). However, "[a] court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7)" ( Sokol v. Leader, 74 A.D.3d at 1181, 904 N.Y.S.2d 153 ; see CPLR 3211[c] ). "If the court considers evidentiary material, the criterion then becomes ‘whether the proponent of the pleading has a cause of action, not whether he has stated one’ " ( Sokol v. Leader, 74 A.D.3d at 1181–1182, 904 N.Y.S.2d 153, quoting Guggenheimer v. Ginzburg, 43 N.Y.2d at 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ). "Yet, affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action" ( Sokol v. Leader, 74 A.D.3d at 1182, 904 N.Y.S.2d 153 [internal quotation marks omitted] ). "Indeed, a motion to dismiss pursuant to CPLR 3211(a)(7) must be denied ‘unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it’ " ( Sokol v. Leader, 74 A.D.3d at 1182, 904 N.Y.S.2d 153, quoting Guggenheimer v. Ginzburg, 43 N.Y.2d at 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ; see Bokhour v. GTI Retail Holdings, Inc., 94 A.D.3d 682, 683, 941 N.Y.S.2d 675 ).
Contrary to the defendant's contention, the plaintiff's allegation that the defendant provided false information to the police and/or persuaded and conspired with the arresting police officer to have the plaintiff arrested falsely was sufficient to state a cause of action alleging false arrest (see generally Williams v. CVS Pharmacy, Inc., 126 A.D.3d 890, 6 N.Y.S.3d 78 ). The defendant failed to establish that "no significant dispute exists" regarding this allegation ( Guggenheimer v. Ginzburg, 43 N.Y.2d at 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ).
The defendant also failed to establish that the plaintiff has no cause of action alleging assault under the doctrine of respondeat superior (see generally Sokol v. Leader, 74 A.D.3d at 1182, 904 N.Y.S.2d 153 ). His affidavit failed to conclusively establish that the tow truck operators were not his agents or that they were not acting within the scope of their employment in order to complete seizure of the vehicle or to hinder the plaintiff from interfering with the seizure of the vehicle.
Accordingly, we agree with the Supreme Court's denial of those branches of the defendant's motion which were pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint insofar as asserted against him based on res judicata, collateral estoppel, and failure to state a cause of action.
MASTRO, J.P., COHEN, MALTESE and LASALLE, JJ., concur.