D'Amico v. Corr. Med. Care, Inc.

• Decision Date: 08 August 2014
• Citation: 991 N.Y.S.2d 687,120 A.D.3d 956,2014 N.Y. Slip Op. 05737
• Parties: April D'AMICO, Plaintiff–Appellant, v. CORRECTIONAL MEDICAL CARE, INC., County of Monroe, Monroe County Sheriff, Andre Carpio, Maria Carpio, also known as Maria Umar, and Emre Umar, Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

120 A.D.3d 956

991 N.Y.S.2d 687

2014 N.Y. Slip Op. 05737

April D'AMICO, Plaintiff–Appellant,

v.CORRECTIONAL MEDICAL CARE, INC., County of Monroe, Monroe County Sheriff, Andre Carpio, Maria Carpio, also known as Maria Umar, and Emre Umar, Defendants–Respondents.

Supreme Court, Appellate Division, Fourth Department, New York.

Aug. 8, 2014.

Christopher J. Enos, Rochester, for Plaintiff–Appellant.

Bond, Schoeneck & King, PLLC, Rochester (Louis Jim of Counsel), for Defendants–Respondents Correctional Medical Care, Inc., Andre Carpio, Maria Carpio, also known as Maria Umar and Emre Umar.

Merideth H. Smith, County Attorney, Rochester (Mallorie C. Rulison of Counsel), for Defendants–Respondents County of Monroe and Monroe County Sheriff.

PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, and WHALEN, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking to recover damages for abuse of process, false imprisonment/false arrest, malicious prosecution, libel per se, intentional infliction of emotional distress, and negligence, after she was allegedly falsely accused of stealing a computer from defendant Correctional Medical Care, Inc. (CMC). Plaintiff appeals from an order granting the motions to dismiss of defendants CMC, Andre Carpio (Andre), Maria Carpio, also known as Maria Umar (Maria), and Emre Umar (Emre) (collectively, CMC defendants) and defendants County of Monroe (County) and Monroe County Sheriff (Sheriff) (collectively, County defendants) ( seeCPLR 3211[a][5], [7], [8] ), and denying plaintiff's cross motions for leave to serve an amended complaint.

Initially, with respect to the CMC defendants, we note that plaintiff properly amended her complaint as of right by filing the verified amended complaint after the CMC defendants moved to dismiss the original complaint ( seeCPLR 3211[f]; see alsoCPLR 3025[a]; STS Mgt. Dev. v. New York State Dept. of Taxation & Fin., 254 A.D.2d 409, 410, 678 N.Y.S.2d 772), and by contemporaneously serving the amended complaint on the CMC defendants' attorney as part of her cross motion ( seeCPLR 2103[b] ). As a result, the amended complaint superseded the original complaint and became the only complaint in the case ( see Aikens Constr. of Rome v. Simons, 284 A.D.2d 946, 947, 727 N.Y.S.2d 213; see generally Preston v. APCH, Inc., 89 A.D.3d 65, 69–70, 930 N.Y.S.2d 722). “We [thus] consider the [CMC defendants'] motion to dismiss as directed against the amended complaint that plaintiff[ ] ... submitted in [her] opposition to the motion” (Ferguson v. Sherman Sq. Realty Corp., 30 A.D.3d 288, 288, 817 N.Y.S.2d 272; see Sage Realty Corp. v. Proskauer Rose, 251 A.D.2d 35, 38, 675 N.Y.S.2d 14).

With respect to the County defendants, the record establishes that they were served with the amended complaint prior to their service of a responsive pleading. Thus, the amended complaint was served as of right on the County defendants ( seeCPLR 3025[a] ). We further note that plaintiff has abandoned her sixth cause of action for intentional infliction of emotional distress ( see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984, 609 N.Y.S.2d 745).

Turning to the merits, “[o]n these motions to dismiss, we accept the facts alleged in the [amended] complaint as true and accord plaintiff the benefit of every favorable inference” (Kirchner v. County of Niagara, 107 A.D.3d 1620, 1621, 969 N.Y.S.2d 277). According to plaintiff, at some time prior to April 2008, CMC entered into a contract with the County whereby CMC would provide medical services to inmates at the Monroe County Jail, which was operated by the Sheriff. Maria served as CMC's chief executive officer; her husband, Emre, was the company's president; and Maria's brother, Andre, was the company's vice president. Plaintiff was employed by CMC as a health services administrator from April 1, 2008 until she was fired on February 1, 2009. In January 2010, plaintiff filed a sexual harassment lawsuit against CMC and Emre, alleging, inter alia, that she had been subjected to unwelcome sexual conduct by Emre during her employment with CMC. In December 2010, Maria, who was allegedly acting both individually and as CEO of CMC, Emre, and Andre all made statements to an investigator in the Sheriff's Office, in the form of supporting depositions, accusing plaintiff of stealing a laptopcomputer belonging to CMC the day after her employment was terminated. Plaintiff alleged that the CMC defendants made such statements with the intent of procuring her arrest for possession of a stolen computer that each defendant knew was, in fact, not stolen. On December 15, 2010, plaintiff was charged by misdemeanor information, which was affirmed by the investigator, with criminal possession of stolen property in the fifth degree, a class A misdemeanor ( seePenal Law § 165.40). Shortly thereafter, plaintiff was arrested without a warrant and subjected to mandatory processing as a criminal defendant by the investigator and other members of the Sheriff's Office. On March 1, 2011, upon motion of her attorney, the misdemeanor information was dismissed in Town Court “as being defective on its face.”

With regard to the first and second causes of action for abuse of process and false imprisonment/false arrest, respectively, plaintiff alleged that the County defendants were vicariously liable for the actions of the investigator, who was acting “in the course of his employment with the [County], as a duly appointed Deputy acting under the supervision and control of the [Sheriff].” Plaintiff further alleged in the seventh cause of action that the County, acting through the Sheriff and his deputies and investigators, was negligent in allowing improper allegations of criminal conduct to be brought against her. Although the County defendants are not aggrieved parties on appeal ( seeCPLR 5511), we may consider their contentions as alternative grounds for affirmance inasmuch as they raised the issue of vicarious liability in Supreme Court ( see Town of Massena v. Niagara Mohawk Power Corp., 45 N.Y.2d 482, 488, 410 N.Y.S.2d 276, 382 N.E.2d 1139). It is well settled that “[a] county may not be held responsible for the negligent acts of the Sheriff and his deputies on the theory of respondeat superior in the absence of a local law assuming such responsibility” (Mosey v. County of Erie, 117 A.D.3d 1381, 1385, 984 N.Y.S.2d 706 [internal quotation marks omitted]; see Trisvan v. County of Monroe, 26 A.D.3d 875, 876, 809 N.Y.S.2d 369, lv. dismissed6 N.Y.3d 891, 817 N.Y.S.2d 625, 850 N.E.2d 672). Section 39–10(B) of the Monroe County Code, of which we take judicial notice ( see St. David's Anglican Catholic Church, Inc. v. Town of Halfmoon, 11 A.D.3d 874, 876, 783 N.Y.S.2d 695, citing CPLR 4511[a] ), provides that Sheriff's deputies are “included under the term ‘employee’ for convenience of reference within this chapter only,” and that section further provides that “[t]he provisions of this chapter shall not be construed as establishing an employment or respondeat superior relationship between the County of Monroe and the Sheriff of the County of Monroe, the Undersheriff of the County of Monroe or any person appointed by the Sheriff of the County of Monroe, including but not limited to Sheriff's deputies. The provisions of this chapter shall not be construed as an assumption by the County of Monroe of responsibility or liability for the negligence or tortious conduct of the Sheriff of the County of Monroe, the Undersheriff of the County of Monroe or any person appointed by the Sheriff of the County of Monroe, including but not limited to Sheriff's deputies.”

Thus, inasmuch as plaintiff asserted against the County causes of action based only on respondeat superior, we conclude that the “amended complaint was properly dismissed against [the County] because [the County] did not assume liability for the acts of the Sheriff or his deputies” (Smelts v. Meloni [Appeal No. 3], 306 A.D.2d 872, 873, 762 N.Y.S.2d 467lv. denied100 N.Y.2d 516, 769 N.Y.S.2d 203, 801 N.E.2d 424).

It is also well established that “a Sheriff cannot be held personally liable for the acts or omissions of his deputies while performing criminal justice functions, and that this principle precludes vicarious liability for the torts of a deputy” (Barr v. Albany County, 50 N.Y.2d 247, 257, 428 N.Y.S.2d 665, 406 N.E.2d 481; see Mosey, 117 A.D.3d at 1385, 984 N.Y.S.2d 706; Trisvan, 26 A.D.3d at 876, 809 N.Y.S.2d 369). We thus conclude that the amended complaint was properly dismissed against the Sheriff inasmuch as all causes of action against him were based only on respondeat superior (Trisvan, 26 A.D.3d at 876, 809 N.Y.S.2d 369).

We conclude, however, that the court erred in dismissing plaintiff's first cause of action, for abuse of process, against the CMC defendants, and we therefore modify the order accordingly. “A plaintiff asserting a cause of action for abuse of process must plead and prove that there was ‘(1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective’ ” (Liss v. Forte, 96 A.D.3d 1592, 1593, 947 N.Y.S.2d 270, quoting Curiano v. Suozzi, 63 N.Y.2d 113, 116, 480 N.Y.S.2d 466, 469 N.E.2d 1324). “In addition, the plaintiff must plead and prove actual or special damages ..., although ... legal fees incurred in defending against false criminal charges are sufficient” ( id.;see Parkin v. Cornell Univ., 78 N.Y.2d 523, 530, 577 N.Y.S.2d 227, 583 N.E.2d 939). We conclude that the court erred in dismissing the cause of action for abuse of process on the ground that there was “no evidence” to support the first element, i.e., that there was no evidence that the CMC defendants caused criminal process to issue against plaintiff. It is well settled that on a motion to dismiss a court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every...