Hankins v. Great Atlantic and Pacific Tea Co.

• Decision Date: 09 February 1995
• Citation: 208 A.D.2d 111,622 N.Y.S.2d 678
• Parties: Lynn HANKINS, Plaintiff-Appellant, v. The GREAT ATLANTIC AND PACIFIC TEA COMPANY, Defendant-Respondent, and Bruce Bradway, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 678

622 N.Y.S.2d 678

208 A.D.2d 111

Lynn HANKINS, Plaintiff-Appellant, v. The GREAT ATLANTIC AND PACIFIC TEA COMPANY, Defendant-Respondent and Bruce Bradway, Defendant.

Supreme Court, Appellate Division First Department.

Feb. 9, 1995.

Harry Kresky, New York City, for plaintiff-appellant.

Ross P. Masler, Jericho, of counsel (Fiedelman & Hoefling, Jericho and Jacobowitz, Garfinkel & Lesman, New York City, attorneys), for defendant-respondent.

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

KUPFERMAN, Justice.

Defendant Bradway was a security guard at an A & P supermarket owned by the corporate defendant and located at 123rd Street and Seventh Avenue in New York. On January 21, 1987, Bradway, in his capacity as a security guard, caused plaintiff to be arrested and charged with attempted shoplifting and assault stemming from an incident that Bradway said occurred more than a month earlier on December 6, 1986 at about 10:00 a.m. in the A & P. Specifically, Bradway claimed that after he caught Hankins trying to steal a box of cereal, she hit him with a milk crate, lacerating both of his hands in the process.

Plaintiff was not arrested in the A & P, but on a nearby street corner. Pursuant to the arrest, plaintiff was fingerprinted, subjected to a strip search and a body cavity search and held overnight. A few months later, the Criminal Court granted plaintiff's motion to dismiss the charges against her "in the interest of justice". In support of the motion, plaintiff's attorney explained that plaintiff, a registered nurse at Columbia Presbyterian Hospital, was at work from 8:00 a.m. to 4:30 p.m. on the day the incident allegedly occurred. Plaintiff filed a notice of alibi and included a letter from her supervisor confirming that she was at work on December 6, 1986.

On January 20, 1988, plaintiff commenced the instant action, raising claims of false arrest, unlawful imprisonment, intentional infliction of emotional distress, false words causing special damages, and malicious prosecution.

In May 1993, A & P moved to dismiss the complaint, arguing that plaintiff failed to establish all of the elements of malicious prosecution and that the remaining claims were time-barred. With regard to the malicious prosecution claim, A & P argued that plaintiff failed to establish that the criminal proceeding was terminated in her favor, an essential element of such a claim (Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248). A & P, citing, among other cases, Jackson v. County of Nassau, 123 A.D.2d 834, 507 N.Y.S.2d 449, appeal denied 69 N.Y.2d 608, 516 N.Y.S.2d 1023, 509 N.E.2d 358, submitted that "a dismissal in the interest of justice" does not constitute a resolution favorable to the accused because it is not based on the merits. Notably, however, the moving papers contained the transcript of plaintiff's examination before trial, during which she explained that Bradway had sexually harassed her for months prior to lodging these charges against her. According to plaintiff, whenever she shopped at the A & P, Bradway allegedly pestered her for dates and subjected her to rude comments and gestures when she refused his advances. Bradway's behavior made her so uncomfortable that she was forced to stop shopping at that A & P several months before she was arrested.

With regard to plaintiff's remaining claims, A & P argued that they were barred by a one-year Statute of Limitations because the summons and complaint were not served in this action until February 5, 1988. In opposition, plaintiff argued that the complaint sufficiently established that the criminal proceeding terminated in her favor due to its lack of merit and she pointed out that the motion to dismiss was based on her uncontroverted alibi i.e., that she was at work at the time of the alleged incident.

Further, plaintiff argued, a claim for malicious prosecution cannot fail merely because the criminal proceeding was dismissed "in the interest of justice"; rather, the court must look beyond that designation and consider the actual basis for the decision (citing, inter alia, Loeb v. Teitelbaum, 77 A.D.2d 92, 432 N.Y.S.2d 487, order amended 80 A.D.2d 838, 439 N.Y.S.2d 300; Brown v. Town of Henrietta, 118 Misc.2d 133, 459 N.Y.S.2d 996). To this end, plaintiff requested an order directing that the records of her criminal case be unsealed.

On November 10, 1993, the IAS court granted A & P's motion in its entirety, finding, inter alia, all claims other than that for malicious prosecution were untimely. ¹ In dismissing plaintiff's malicious prosecution claim, the court relied, as have others, upon the statement in Ryan v. New York Telephone Co. that "[a] dismissal 'in the interest of justice' is neither an acquittal of the charges nor any determination of the merits. Rather, it leaves the question of guilt or innocence unanswered" (62 N.Y.2d 494, 504-505, 478 N.Y.S.2d 823, 467 N.E.2d 487 [citations omitted].

In context, however, this quote does not appear to have been intended to establish that, as a matter of law, a dismissal in the interest of justice bars a subsequent claim for malicious prosecution. Further, such an interpretation would lead to an illogical and manifestly unfair result in the instant case. Such a rule would penalize those who are charged falsely as they would be constrained to proceed to trial at some financial, emotional and likely professional expense in order to be found not guilty. Under this interpretation of Ryan, the only people who could succeed on a claim for malicious prosecution would be those who, because the arrest was questionable, would proceed to trial and judgment, while those whose arrests were truly and obviously invalid, would have the matter disposed of ipso facto and without litigation.

In any event, a closer reading of Ryan contradicts this application. There, the plaintiff was arrested and then fired from his job after two security guards observed him removing company equipment from the workplace. When Ryan's application for unemployment benefits was denied on the ground that he was discharged due to his own misconduct, he appealed that determination. After a full administrative hearing, during which Ryan was represented by a union representative familiar with such matters, the administrative law judge sustained the finding of misconduct and denied the benefits. That determination was affirmed by the Unemployment Insurance Appeal Board whose decision was, in turn, upheld by the Third Department. During this time, the criminal charges against Ryan were adjourned in contemplation of dismissal, then restored to the trial calendar, and ultimately dismissed in the interest of justice upon the People's motion.

Meanwhile, Ryan initiated a civil action alleging claims virtually identical to those raised by plaintiff in the instant case. There, New York Telephone raised the affirmative defenses of res judicata and collateral estoppel on the basis of the prior administrative proceeding.

With regard to the claim for malicious prosecution, the Court of Appeals found that Ryan failed to establish the essential element of a lack of probable cause for instituting the criminal proceeding. The Court held that the finding of the administrative proceeding "is decisive that defendants' investigators ... had probable cause to bring charges against him" (Id., at 503, 478 N.Y.S.2d 823, 467 N.E.2d 487). The Ryan court did not address the element requiring the plaintiff to...