Buccieri v. Franzreb

• Decision Date: 15 February 1994
• Citation: 201 A.D.2d 356,607 N.Y.S.2d 330
• Parties: , 89 Ed. Law Rep. 208 Vincent BUCCIERI, Plaintiff-Respondent, v. Jarad FRANZREB, et al., Defendants-Respondents, Fordham University, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 330

607 N.Y.S.2d 330

201 A.D.2d 356, 89 Ed. Law Rep. 208

Vincent BUCCIERI, Plaintiff-Respondent, v. Jarad FRANZREB, et al., Defendants-Respondents Fordham University, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Feb. 15, 1994.

Before CARRO, J.P., and ELLERIN, KUPFERMAN and RUBIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (Hansel McGee, J.), entered June 17, 1992 which denied the motion of defendant-appellant Fordham University to dismiss the complaint as against it, unanimously reversed, on the law, with costs, and the motion to dismiss is granted.

The complaint alleges that on September 28, 1989 defendant Franzreb, then a student at defendant-appellant Fordham University, and defendant James Muse, a security guard employed by IBI Security Service, Inc., which provided security services to Fordham pursuant to contract, reported to Fordham "agents" that they had been assaulted with a deadly weapon or dangerous instrument by the plaintiff, who was then a Fordham student. Thereafter Franzreb and Muse, at the urging of Fordham's agents, reported the assault to the police, and after the plaintiff voluntarily surrendered and was placed in a lineup, Franzreb identified plaintiff as his assailant. On October 4, 1989, plaintiff was released in his own recognizance by the Bronx Criminal Court, subject to an order of protection barring plaintiff from the Fordham campus. On April 5, 1990, the charges were dismissed by a judge of the Bronx Criminal Court for reasons not specified in the record.

Plaintiff commenced the instant action on October 3, 1990. The complaint set forth five causes of action sounding in (1) intentional infliction of emotional distress, (2) malicious prosecution, (3) defamation, (4) abuse of process and (5) negligent supervision and conspiracy. Fordham moved to dismiss the complaint for failure to state a cause of action and on Statute of Limitations grounds. For reasons that follow, the motion to dismiss the complaint must be granted.

Liability for intentional infliction of emotional distress is predicated on "extreme and outrageous conduct, which so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society" (Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143, 490 N.Y.S.2d 735, 480 N.E.2d 349). The only affirmative conduct alleged against Fordham is that after its agents received a report of an assault, those agents urged the victims to report the matter to the police, and aided one of the two victims in identifying his purported assailant. Since this conduct does not remotely approach the standard of behavior necessary to support a cause of action for intentional infliction of emotional distress, that cause of action should have been dismissed (Burlew v. American Mut. Ins. Co., 63 N.Y.2d 412, 417, 482 N.Y.S.2d 720, 472 N.E.2d 682).

The elements of a cause of action for malicious prosecution are the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, with malice and without probable cause, and termination of the proceeding in favor of the plaintiff (Broughton v. State of New York, 37 N.Y.2d 451, 457, 373 N.Y.S.2d 87, 335 N.E.2d 310, cert. denied sub nom. Schanbarger v. Kellogg, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257). Fordham did not commence a criminal proceeding against the plaintiff, but rather urged Franzreb and Muse, who reported that they had been assaulted by plaintiff, to report the matter to the police. Even if Fordham were responsible for commencement of the proceeding, the report that plaintiff was the assailant, and Franzreb's identification of plaintiff in a lineup,...