Du Chateau v. Metro-North Commuter R. Co.

• Decision Date: 18 March 1999
• Docket Number: METRO-NORTH
• Citation: 253 A.D.2d 128,688 N.Y.S.2d 12
• Parties: , 1999 N.Y. Slip Op. 2362, 1999 N.Y. Slip Op. 2363 Daniel DU CHATEAU, Plaintiff-Respondent, v.COMMUTER RAILROAD COMPANY, Defendant-Appellant, and M. Romanoski, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 12

688 N.Y.S.2d 12

253 A.D.2d 128, 1999 N.Y. Slip Op. 2362,

1999 N.Y. Slip Op. 2363

Daniel DU CHATEAU, Plaintiff-Respondent, v. METRO-NORTH COMMUTER RAILROAD COMPANY, Defendant-Appellant and M. Romanoski, Defendant.

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

March 18, 1999.

John W. Cobb, of counsel (Cobb & Cobb, attorneys) for plaintiff-respondent,

Lisa J. Hart, of counsel (Richard K. Bernard, attorney) for defendant-appellant.

SULLIVAN, J.P., LERNER, MAZZARELLI and SAXE, JJ.

SULLIVAN, J.P.

On this appeal from the denial of defendant Metro-North Commuter Railroad Company's motion for summary judgment dismissing the complaint, which asserts claims for false arrest and malicious prosecution, the essential underlying facts are not in dispute.

On August 11, 1994, plaintiff, a passenger on a Metro-North train, became upset when the conductor, Madeline Romanoski, ¹ insisted that he pay his fare notwithstanding his explanation that he had forgotten his monthly pass and that another conductor had, earlier that day, permitted him to ride for free. Plaintiff eventually paid the fare but not without referring to Romanoski as a "jerk". According to plaintiff, he asked Romanoski for her name and then bent forward to look at her name tag. In the process, the back of his left hand grazed her right arm. According to Romanoski, after she collected the fare from plaintiff and walked away to collect the next fare, plaintiff "grabbed me roughly by the arm, pulling me back toward him, leaving a red mark on my arm." Romanoski reported the incident to the train engineer, who radioed for police assistance.

After the train stopped at the 125th Street station, Romanoski met Metro-North police officers Valentin and Dyer, explaining what had happened. She showed Valentin the red mark on her arm where plaintiff had grabbed her and, at Valentin's request, identified plaintiff as the passenger involved. Valentin spoke privately with plaintiff after he had been escorted from the train. Valentin, then filled out an appearance ticket (summons), and, as is customary, asked Romanoski to sign it since she was the complaining witness. Romanoski did so. Valentin signed in the place designated "Rank/Signature of Complainant."

According to Officer Valentin, who submitted an affidavit in support of Metro-North's motion, he observed the red mark on the arm of Romanoski, who was visibly upset when he questioned her. As Valentin recalls, plaintiff had "admitted to grabbing Ms. Romanoski's arm but claimed that he was trying to turn her around so he could read her name tag." Based on his questioning of both plaintiff and Romanoski, the presence of the red mark on Romanoski's arm and taking into account how upset she was, Valentin determined that he had probable cause to believe that plaintiff had harassed her. Before issuing the summons, he reviewed the Penal Law to confirm the appropriateness of the charge. ² Plaintiff was acquitted after trial.

In denying Metro-North's motion for summary judgment dismissing the complaint, the IAS court found triable issues of fact as to "whether the conductor properly acted with the scope of her employment in reporting the matter to the police and in causing the arrest." The issue of respondeat superior should never have been reached since, assuming the conductor to have acted within the scope of her authority, she is not, as argued, liable, as a matter of law, for either false arrest or malicious prosecution and, thus, Metro-North's summary judgment motion should have been granted. Plaintiff, as he did before the IAS court, limits his vicarious liability argument to the actions of Romanoski. As his brief states, "[t]here is no question but that defendant Romanoski--and nobody else but defendant Romanoski--was responsible for the initiation of the prior Criminal Court proceeding".

It is well settled in this State'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 or malicious prosecution. (See, Celnick v. Freitag, 242 A.D.2d 436, 437, 662 N.Y.S.2d 37; Schiffren v. Kramer, 225 A.D.2d 757, 758-759, 640 N.Y.S.2d 175)

Nor does identifying plaintiff as the perpetrator of a crime, signing the summons or testifying at trial give rise to tort liability. (See, Collins v. Brown, 129 A.D.2d 902, 514 N.Y.S.2d 538; Pugach v. Borja, 175 Misc.2d 683, 670 N.Y.S.2d 718.) As noted in Eisenkraft v. Armstrong, 172 A.D.2d 484, 486, 567 N.Y.S.2d 840, in words that could well have been written of the instant matter, "The defendant Armstrong merely provided information to the police and there is nothing to indicate that she commenced the proceeding against the plaintiff or that she instigated the arrest [citations omitted]." Here, all that has been shown is that Romanoski reported the incident, identified plaintiff, signed the summons as a complaining witness and testified at the original trial. The decision to arrest and charge plaintiff with harassment was made solely by Officer Valentin. Thus, there is no legally sufficient basis for the imposition of liability (see, e.g., Cobb v. Willis, 208 A.D.2d 1155, 1156-57, 617 N.Y.S.2d 601) against either Romanoski or Metro-North for false arrest or malicious prosecution.

Plaintiff's malicious prosecution claim also fails for two other reasons. In support of such a claim, a plaintiff must demonstrate the "(1) initiation of a proceeding,(2) its termination favorably to plaintiff, (3) lack of probable cause, and (4) malice." (Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248.) Plaintiff cannot show that Romanoski "played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act." (Viza v. Town of Greece, 94 A.D.2d 965, 966, 463 N.Y.S.2d 970.) As in the case of false arrest, " 'the mere reporting of a crime to police and giving testimony are insufficient' " to show a defendant's initiation of a criminal proceeding. (DeFilippo v. County of Nassau, 183 A.D.2d 695, 696, 583 N.Y.S.2d 283 lv. denied 85 N.Y.2d 806, 627 N.Y.S.2d 323, 650 N.E.2d 1325, quoting Viza v. Town of Greece, supra, at 966, 463 N.Y.S.2d 970.) There is no evidence that Romanoski gave false information or withheld information from Officer Valentin. Thus, as a matter of law, plaintiff has failed to show that Romanoski initiated the prosecution.

Nor can plaintiff show actual malice. To do so, plaintiff had to demonstrate that defendant "commenced the prior criminal proceeding due to a wrong or improper motive, something other than a...