Goldenberg v. Capital One Nat'l Ass'n

• Decision Date: 26 August 2020
• Docket Number: Index No. 4185/14,2017–06476
• Citation: 129 N.Y.S.3d 475,186 A.D.3d 810
• Parties: Yoel GOLDENBERG, etc., appellant, v. CAPITAL ONE NATIONAL ASSOCIATION, etc., respondent.
• Court: New York Supreme Court — Appellate Division

186 A.D.3d 810
129 N.Y.S.3d 475

Yoel GOLDENBERG, etc., appellant,
v.
CAPITAL ONE NATIONAL ASSOCIATION, etc., respondent.

2017–06476
Index No. 4185/14

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

Argued—November 19, 2019
August 26, 2020

129 N.Y.S.3d 477

Richard A. Finkel, Esq., & Associates, PLLC, New York, NY, for appellant.

Lazer, Aptheker, Rosella & Yedid, P.C., Melville, N.Y. (David Lazer and Mark Curtis of counsel), for respondent.

LEONARD B. AUSTIN, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

186 A.D.3d 810

In an action to recover damages for malicious prosecution, the plaintiff appeals from an order of the Supreme Court, Kings County (Wavny Toussaint, J.), dated May 5, 2017. The order, insofar as appealed from, granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

In July and August 2012, the plaintiff, on behalf of various companies he owned, opened a number of business checking accounts with the defendant's bank. On August 29, 2012, a manager employed at one of the defendant's branches noticed activity which involved an alleged forged instrument being remotely deposited into one of the subject business checking accounts and, as a result, froze all funds in that account. The next day, the manager reported the activity in the subject account to the police and also informed the police that the plaintiff was the only signatory on that account. Thereafter, the plaintiff was arrested when the defendant's branch manager called the police to let them know that she saw the plaintiff at another nearby bank and asked the branch manager of that other bank to identify the plaintiff for the police upon their arrival.

Subsequently, the plaintiff was charged with a number of felonies, including grand larceny in the second degree, criminal possession of stolen property in the second degree, and criminal possession of a forged instrument in the second degree. The criminal complaint, dated August 31, 2012, which alleged multiple fraudulent check deposits, was based, in part, upon the statements made by the defendant's branch manager that the plaintiff had stolen more than $50,000 from the defendant.

The plaintiff was incarcerated from August 30, 2012, until September 6, 2012, when a bail hearing was held and he was released upon posting bond. The plaintiff returned to court on March 29, 2013, at which time the criminal proceeding against him was dismissed. The charges set forth in the criminal complaint were never presented to a grand jury.

In March 2014, the plaintiff commenced this action to recover damages for malicious prosecution against the defendant, alleging that the defendant's branch manager made false

186 A.D.3d 811

statements to the police regarding the nature of the checking transactions which led to his arrest without first conferring with him or representatives of his companies. The defendant moved for summary judgment dismissing the complaint, arguing that the plaintiff could not establish either that there was no probable cause supporting his arrest and prosecution or that the criminal proceeding was terminated in his favor. In an order dated May 5, 2017, the Supreme Court, among other things,...