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The Issue in this Case is Whether there is a Valid Cause of Action

A New York Criminal Lawyer said that, plaintiff, a former employee of a department store, commenced this action for, inter alia, malicious prosecution, false imprisonment, slander and breach of contract, after she was accused of falsifying business records and misappropriating large sums of the employer’s money under the guise of various customer discounts and refunds. The action was previously stayed pending the outcome of the related criminal proceeding, as a result of which plaintiff was convicted of grand larceny in the third degree and falsifying business records in the first degree, and sentenced to 90 days in prison and 100 hours of community service, five years probation and a $96,000 fine.

A New York Criminal Lawyer said the plaintiff was employed by defendant department store flagship store’s fine jewelry department as a sales associate from September 1998 through January 2006, when her employment was terminated. Thereafter, defendants reported to the New York City Police Department (the “NYPD”) that plaintiff falsified records and misappropriated in excess of $50,000 of Saks’s funds. The New York County District Attorney (the “DA”) filed a criminal complaint against her and plaintiff was indicted by a Grand Jury on 316 felony counts for the crimes of grand larceny in the first and third degrees and falsifying business records in the first degree.

A Suffolk County Criminal Lawyer said that after the indictment, plaintiff commenced this action against defendants, alleging 13 causes of action and seeking more than $10 million in damages. Plaintiff alleges that defendants failed to pay her compensation from 2002 to 2006, refund $22,000 for certain returned merchandise and compensate her for unused vacation time, – all in breach of seven contracts attached to the complaint. Plaintiff also claims that defendants terminated her employment in order to avoid paying her compensation, including a fall 2005 bonus in the amount of approximately $100,000.

A Nassau County Criminal Lawyer said that, plaintiff further alleges that defendants maliciously prosecuted and defamed her by making false accusations resulting in her arrest and criminal prosecution and stating to certain employees and vendors that she was terminated because of “creating a shortage for the company” and generating false sales to qualify for productivity bonuses. Plaintiff claims defendants made said statements with intent to damage her reputation. Plaintiff also alleges claims for false imprisonment and intentional infliction of emotional distress, which also resulted in damage to her reputation, loss of earnings and special damages in the form of costs of her defense against the prosecution, and costs of criminal investigation and hospitalization as a result of her severe emotional distress. Plaintiff’s complaint also alleges two causes of action for promissory estoppel, breach of the implied covenant of good faith and fair dealing, quantum meruit, unjust enrichment and Labor Law §§191, 193 and 198, all based on defendants’ alleged failure to pay salary, bonuses and other compensation to plaintiff.

Defendants now move for dismissal of plaintiff’s complaint, arguing that none of the asserted causes of action are valid.

Since plaintiff’s criminal action has concluded and her conviction has been upheld on appeal, the stay is hereby lifted, and the court proceeds with the disposition of the long-dormant motion of defendants, pursuant to CPLR §3211 (a)(7), dismissing plaintiff’s complaint for failure to state a cause of action and dismissing the fifth cause of action for breach of contract on an additional ground of CPLR §3211 (a)(1) (defense based on documentary evidence).

The issue in this case is whether plaintiff’s complaint should be dismissed on the ground of lack of cause of action.

On a motion to dismiss pursuant to CPLR §3211 (a)(7), the pleading is to be afforded a liberal construction. The court must accept the allegations of the complaint as true and provide plaintiff the benefit of every possible favorable inference. In determining a motion to dismiss, the Court’s role is ordinarily limited to determining whether the complaint states a cause of action. Thus, “whether a plaintiff can ultimately establish its allegations, is not part of the calculus in determining a motion to dismiss”.

Further, in order to prevail on a CPLR 3211(a)(1) motion, the moving party must show that the documentary evidence conclusively refutes plaintiff’s allegations. Where documentary evidence flatly contradicts the factual claims, the entitlement to the presumption of truth and the favorable inferences is. For the reasons explained below, in light of plaintiff’s criminal conviction, plaintiff’s causes of action for malicious prosecution, false imprisonment, intentional infliction of emotional distress and libel and slander, based on falsity of defendants’ statements and/or lack of probable cause, fail as a matter of law.

To state a cause of action for malicious prosecution, the plaintiff must allege (1) the commencement or continuation of a proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the [plaintiff], (3) the absence of probable cause for the proceeding, and (4) actual malice. An action brought with actual malice is one brought with “conscious falsity”. Furthermore, the plaintiff must allege that the underlying action was filed with “a purpose other than the adjudication of a claim,” and that there was “an entire lack of probable cause in the prior proceeding”. A plaintiff must also allege (and prove) “special injury”. Failure to establish any one of these elements defeats the entire claim.

At this juncture, it is undisputed that the criminal proceeding against plaintiff did not terminate in her favor, since it is established that “a criminal defendant has not obtained a favorable termination of a criminal proceeding where the outcome is inconsistent with the innocence of the accused”. Further, the record likewise establishes the existence of a probable cause for defendants to provide the information of plaintiff’s wrongdoings to the police. And, “a conviction which survives appeal is conclusive evidence of probable cause”. Here, such probable cause was conclusively established by the criminal conviction as affirmed by the Appellate Division.
It should be noted, that plaintiff’s contention of falsity of the evidence supplied by defendants to the police, i.e., that, some of the information provided by defendants turned out to be not true, since at trial, out of 316 counts she was convicted only of 146, does not vitiate the existence of probable cause. Therefore, the existence of probable cause bars plaintiff’s cause of action for malicious prosecution warranting dismissal of this cause of action.

A plaintiff pursuing a common-law claim of false imprisonment or false arrest under New York law, must allege that: (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.

Here, it is undisputed that plaintiff was arrested and detained by the NYPD officers, and not by employees of defendants, and that defendants did not actually confine her. Furthermore, “it is well settled in New York’s jurisprudence that 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'”. And even where a defendant allegedly provides incorrect or incomplete information to the law enforcement, a successful false arrest claim requires allegations that the private defendant “affirmatively induced or importuned the officer to arrest” plaintiff.

Under the circumstances, plaintiff’s conclusory allegations that, “as a result of Defendants’ actions, Plaintiff was arrested and imprisoned” and “Defendants intended to cause Plaintiff to be imprisoned,” are insufficient to state the cause of action for false imprisonment against defendants, warranting dismissal of this claim.

In order to state a cause of action for intentional infliction of emotional distress, plaintiff must allege the following: (1) extreme and outrageous conduct; (2) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and injury; and (4) severe emotional distress. The conduct complained of must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community”.

Here, plaintiff’s allegations that “defendants’ wrongful institution of the criminal Action and other wrongful actions, after she had been one of its best employees for years,” and that they “initiated an unannounced interrogation” which “lasted four hours,” failed to pay “what was owed to her” and made false statements to the police resulting in her arrest, fail to constitute conduct that is “so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency”. Thus, since such allegations are insufficient to satisfy the requisite element of egregious or outrageous conduct on the part of defendants, the dismissal of plaintiff’s emotional distress claim is warranted.

The elements of a defamation claim (including, slander) are (1) a false statement; (2) published without privilege or authorization to a third party; (3) constituting fault as judged by, at a minimum, a negligence standard, and (4) either causing special harm or constituting defamation per se. “Slander per se” includes, inter alia, “statements charging plaintiff with a serious crime”.
Furthermore, CPLR §3016 (a) requires that, in a defamation action, “the particular words complained of be set forth in the complaint,” and the complaint must also allege the time, place, manner and the recipient of the false statement.

As demonstrated by plaintiff’s criminal conviction of grand larceny in the third degree and falsifying business records in the first degree, upheld on appeal, defendants’ statements made at the employee meeting and to the police that plaintiff “stole its property” and improperly issued credits for factitious returns, were substantially true, and thus, protected by a complete defense of truth.

Plaintiff’s argument that, even though her conviction “tends to establish truth,” she was acquitted on some of the charges, “including some alleged in Defendants’ slanderous statements,”9 is unavailing since, under New York law, “it is not necessary to demonstrate complete accuracy to defeat a charge of libel. It is only necessary that the gist or substance of the challenged statements be true. And in any event, plaintiff fails to allege, as required by CPLR §3016 [a], the specific statements made by defendants with the respect to the charges on which she was acquitted, or when and to whom they were made.

In light of the above, and in the absence of any allegations of libel, i.e., written defamatory statements, plaintiff’s claim for libel and slander is dismissed.

Accordingly, the court held that the branches of the motion of the defendants pursuant to CPLR 3211 (a)(7) and (a)(1), dismissing plaintiff first cause of action for malicious prosecution, the second cause of action for false imprisonment and arrest, the third cause of action for intentional infliction of emotional distress, the fourth cause of action for libel and slander, the fifth cause of action for breach of contract, the sixth cause of action for promissory estoppel, the tenth cause of action for implied covenant of good faith and fair dealing, the portion of the eleventh cause of action solely as to claim under Labor Law §193, the twelfth cause of action for quantum meruit and the thirteenth cause of action for unjust enrichment, are granted and said claims are hereby severed and dismissed with prejudice. The motion is denied in all other respects. And it is further ordered that plaintiff’s cross-motion to amend the complaint and to stay the action pending the determination of the appeal of the criminal action is denied; and it is further ordered that the parties shall appear for a discovery conference on May 24, 2011, 2:30 p.m. at Part 35, 60 Centre Street, New York, New York.

If the complaint is insufficient to be prosecuted, seek the help of New York Order of Protection Attorney and New York Criminal Attorney at Stephen Bilkis and Associates.

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