Bradshaw v. Silversmith
| Decision Date | 21 January 1983 |
| Citation | 472 N.Y.S.2d 237,122 Misc.2d 544 |
| Parties | Amanda BRADSHAW, Plaintiff, v. Phillis SILVERSMITH, American Society for the Prevention of Cruelty to Animals, Defendant. |
| Court | New York Supreme Court |
Agri & Bilder, P.C., by Orin E. Agri, New York City, for plaintiff.
Frederick A.O. Schwarz, Corporation Counsel, New York City, for third-party defendant.
Giordano & Klaum, New York City, for defendant A.S.P.C.A.; Steven Sher, New York City, of counsel.
A "shaggy dog story" is an offbeat form of humor in which routine and ordinary events, frequently involving an animal companion, unfold to an inwardly logical but bizarre and ostensibly humorous denouement. This case involves that kind of "shaggy dog story."
Plaintiff, Amanda Bradshaw, a court interpreter employed by the federal government, has asserted that her appearance at the ASPCA to change the name and the registration of her newly adopted dog, Sparky, gave rise to a chain of events in which she was arrested by four policemen at a bagel buffet, handcuffed, accused of armed robbery, and when cleared, nevertheless held in custody on a warrant because she had been charged, allegedly unbeknownst to her, with harboring an unlicensed dog.
The essence of plaintiff's complaint, as amplified in her deposition, is as follows:
On March 12, 1979, plaintiff says she appeared at the Manhattan offices of the ASPCA for the purpose of having her dog spayed. She informed defendant Silverstein, an employee of the ASPCA, (sued herein as Silversmith), that the dog, which had been adopted from the ASPCA pound and licensed six weeks before, had been given to her by an acquaintance. Plaintiff described the dog as "a mutt--part Collie, part German Shepherd and part Golden Retriever." Plaintiff asked Ms. Silverstein how she could officially change the dog's name from "Sasha" to "Sparky." In addition, she wanted the dog's registration and license changed to reflect that she, rather than her friend, was now the dog's owner. Ms. Silverstein said she would have to get a new license and gave her a "pink slip." The dog was left overnight for spaying. The dog was picked up the next day, but plaintiff had tucked the pink slip away, and then did nothing further about it.
On July 5, 1979, at around 6:00 p.m., she walked into a store with a male companion to get bagels, and she was suddenly surrounded by four policemen. The police said they were looking for a stick-up team and that they would have to go down to the station for questioning. They were handcuffed and put into the car. When it was established she had nothing to do with any robbery, she was not released, for she was informed that there was an outstanding warrant for her arrest. She was locked in a cell until midnight, when her lawyer finally obtained her release. On the following day, she appeared in Criminal Court and was informed that the charge against her was harboring a dog without a license. She admitted in court that she did not have a license for the dog (her friend had obtained it), and pleaded guilty, being released upon her promise to get her dog a new license. She then did obtain the new license in her own name.
The complaint sets forth four separate causes of action demanding $4,000,000 in damages--$2,000,000 compensatory and $2,000,000 punitive. Defendants, annexing the transcripts of plaintiff's depositions, move for summary judgment. The first cause of action alleges that inasmuch as the dog in question was, in fact, a licensed dog at the time Ms. Silverstein issued the violation and complaint charging the plaintiff with harboring an unlicensed dog, that such action was without basis and the result of "negligence" in carelessly starting a chain of events which led to the detention of the plaintiff, the retaining of counsel, a court appearance and plea of guilty.
The second cause of action, which realleges the same operative facts, seeks punitive damages. This cause of action, of course, cannot stand as an independent cause of action and is stricken (Weir Metro Ambu-Service, Inc. v. Turner, 57 N.Y.2d 911, 456 N.Y.S.2d 757, 442 N.E.2d 1268; Trans-State Hay & Feed Corp. v. Faberge, Inc., 42 A.D.2d 535, 344 N.Y.S.2d 730, aff'd. 35 N.Y.2d 669, 360 N.Y.S.2d 886, 319 N.E.2d 201).
The third cause of action alleges that the defendants infringed her civil rights in violation of 42 U.S.C. § 1983.
The fourth cause of action alleges that the conduct of the defendant was "wanton and tortious." This appears to be an alternative pleading to the first cause, that if the conduct of defendants was not negligent, it was deliberate.
Defendants' motion to dismiss the complaint is premised on the theory that all causes of action alleged really plead variations on the tort of malicious prosecution and a cause of action for malicious prosecution will not lie. A cause of action for malicious prosecution requires the commencement of a criminal proceeding by the defendant, the termination of the proceeding in favor of the accused, the absence of probable cause and actual malice. There is no question but that the summons for the violation of harboring an unlicensed dog and the warrant issued upon plaintiff's non-appearance were colorably valid. There is no question but that the criminal proceeding was not terminated favorably to plaintiff because she entered a guilty plea. Whether this was a matter of expediency or not, it bars a cause of action for malicious prosecution.
The fourth cause of action, which alleges "wanton" conduct, clearly is tantamount to alleging malice and under those circumstances, must be construed as a cause of action for malicious prosecution, which cannot be sustained.
Plaintiff contends, however, that she is not proceeding solely by way of malicious prosecution, and that the gravamen of the first cause of action is negligence. It is asserted that the negligence alleged is (a) that the party issuing the summons lacked the experience and knowledge necessary to be given such authority by the ASPCA and (b) the party issuing the summons improperly and unreasonably construed the law to determine that the plaintiff was in violation of the licensing requirements when the dog was, in fact, licensed and merely transfer of ownership was sought and that she acted hastily without regard for the consequences.
It was an intolerable "Catch 22" situation. Plaintiff, having come in with law-abiding intent to get the proper papers, by her very act of applying for them admitted that she did not have such papers at that time, so that technically she was in violation of Chapter 533 of the Laws of 1974, Chapter 115 of the Laws of 1894 with respect to dog licensing. 1
Unfortunately, the Appellate Division of the Second Department has, subsequent to the institution of this cause of action, held that a defendant may not be found liable for the negligent instigation of a prosecution. Jestic v. Long Island Savings Bank, 81 A.D.2d 255, 440 N.Y.S.2d 278. In that case, as in this, causes of action for malicious prosecution and negligence were pleaded on the ground that the actions of the complainant were either wilful and malicious or were negligent. The court held that in actuality, whether alleging malice or negligence, plaintiff was seeking the same relief for the same wrong. There being no malice (the prosecution of plaintiff for embezzlement having been instigated in good faith on the basis of what were subsequently determined to be computer errors), the cause of action for malicious prosecution would not lie, and the pleading of ordinary negligence, below the level of wanton and reckless acts, which presupposes a mistake in good faith, similarly would not give rise to a cause of action, since as a matter of public policy those who act in a reasonable manner in bringing to justice those they believe are criminals must be protected. id., 259. Plaintiff having pleaded guilty in this case, is precluded from asserting lack of probable cause. 2
Thus, a claim of "negligent" instigation of a prosecution states no cause of action. It is possible, however, that a claim of negligence in this case could be sustained, based not on the unreasonable issuance of the summons,...
To continue reading
Request your trial
-
Morrison v. Lefevre, 79 Civ. 1508 (ADS).
...can support a § 1983 action. A recent § 1983 case brought in New York state court expanded upon this distinction. Bradshaw v. Silversmith, 122 Misc.2d 544, 472 N.Y.S.2d 237 (Spec.Term 1983), held that, although the plaintiff's claim for malicious prosecution for harboring a dog without a li......
-
Suss v. AM. SOC. FOR PREV. OF CRUELTY TO ANIMALS
...Special Study No. 27, Historical Reports on War Administration (Civilian Production Admin.1947). 19 See e.g. Bradshaw v. Silversmith, 122 Misc.2d 544, 472 N.Y.S.2d 237 (1983); County of Albany v. American Soc., Etc., 112 Misc.2d 829, 447 N.Y.S.2d 662 (Sup.Ct.1982); People v. Smith, 125 Misc......
-
Bernstein v. Centaur Ins. Co.
...See Weir Metro Ambu-Service v. Turner, 57 N.Y.2d 911, 456 N.Y.S.2d 757, 442 N.E.2d 1268 (1982); Bradshaw v. Silversmith, 122 Misc.2d 544, 546, 472 N.Y.S.2d 237, 239 (N.Y.App.Term 1983). Moreover, even if the Court were to construe the complaint liberally and interpret the seventh cause of a......
-
Nelson v. Stanley Blacker, Inc.
...Weir Metro Ambu-Service v. Turner, 57 N.Y.2d 911, 456 N.Y.S.2d 757, 442 N.E.2d 1268 (1982); Bradshaw v. Silversmith, 122 Misc.2d 544, 546, 472 N.Y.S.2d 237, 239 (Sup.App.Term 1983). Moreover, if the fourth cause of action is a demand for punitive damages, that demand must fail. First, as th......