Opinion
2016–12954 Index No. 508011/16
11-13-2019
Hugh WILLISTON, Respondent, v. JACK RESNICK & SONS, INC., et al., Appellants.
Eustace, Marquez, Epstein, Prezioso & Yapchanyk, New York, N.Y. (Richard C. Prezioso of counsel), for appellants. Levidow, Levidow & Oberman, P.C. (Diamond & Diamond, LLC, Brooklyn, N.Y. [Stuart Diamond ], of counsel), for respondent.
Eustace, Marquez, Epstein, Prezioso & Yapchanyk, New York, N.Y. (Richard C. Prezioso of counsel), for appellants.
Levidow, Levidow & Oberman, P.C. (Diamond & Diamond, LLC, Brooklyn, N.Y. [Stuart Diamond ], of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, JOHN M. LEVENTHAL, ROBERT J. MILLER, JJ.
DECISION & ORDER ORDERED that the order is reversed, on the law, with costs, and the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint is granted.
The plaintiff commenced this action to recover damages for malicious prosecution and false imprisonment. The defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. By order dated November 3, 2016, the Supreme Court denied the defendants' motion, and the defendants appeal.
We agree with the Supreme Court's determination that dismissal of the complaint was not warranted based upon documentary evidence. The evidence submitted by the defendants did not constitute documentary evidence within the meaning of CPLR 3211(a)(1) (see Feldshteyn v. Brighton Beach 2012, LLC, 153 A.D.3d 670, 670–671, 61 N.Y.S.3d 60 ; Cives Corp. v. George A. Fuller Co., Inc., 97 A.D.3d 713, 714, 948 N.Y.S.2d 658 ; HSBC Bank, USA v. Pugkhem, 88 A.D.3d 649, 651, 931 N.Y.S.2d 635 ).
However, the Supreme Court should have granted the defendants' motion to dismiss the complaint for failure to state a cause of action. "On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Breytman v. Olinville Realty, LLC, 54 A.D.3d 703, 703–704, 864 N.Y.S.2d 70 ). "However, where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff ‘has a cause of action, not whether [the plaintiff] has stated one, and, unless it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it ... dismissal should not eventuate’ " ( Fishberger v. Voss, 51 A.D.3d 627, 628, 858 N.Y.S.2d 257, quoting Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 274–275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ).
"A civilian defendant who merely furnishes information to law enforcement authorities, who are then free to exercise their own independent judgment as to whether an arrest will be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution" ( Johnson v. Follett Higher Educ. Group, Inc., 113 A.D.3d 819, 820, 979 N.Y.S.2d 393 ). "To be held liable for false arrest, the defendant must have affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his [or her] own volition" ( Williams v. CVS Pharmacy, Inc., 126 A.D.3d 890, 892, 6 N.Y.S.3d 78 [internal quotation marks omitted] ). "Similarly, in order for a civilian defendant to be considered to have initiated the criminal proceeding so as to support a cause of action based on malicious prosecution, it must be shown that defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act" ( id. at 892, 6 N.Y.S.3d 78 [internal quotation marks omitted] ). "Merely giving false information to the authorities does not constitute initiation of the proceeding without an additional allegation or showing that, at the time the information was provided, the defendant knew it to be false, yet still gave it to the police or District Attorney" ( id. at 892, 6 N.Y.S.3d 78 [internal quotation marks omitted] ). Here, the plaintiff's complaint and his affidavit in opposition to the motion merely alleged that the defendants provided false information to the police, and therefore, did not establish that the plaintiff has a cause of action to recover damages for malicious prosecution or false arrest against the defendants (see Lupski v. County of Nassau, 32 A.D.3d 997, 998–999, 822 N.Y.S.2d 112 ; Paisley v. Coin Device Corp., 5 A.D.3d 748, 749–750, 773 N.Y.S.2d 582 ; O'Connell v. Luebs, 264 A.D.2d 385, 694 N.Y.S.2d 112 ).
SCHEINKMAN, P.J., DILLON, LEVENTHAL and MILLER, JJ., concur.