Hernandez v. Denny's Corp.

• Decision Date: 15 November 2019
• Docket Number: 944,CA 19–00422
• Citation: 114 N.Y.S.3d 147,177 A.D.3d 1372
• Parties: Hector A. HERNANDEZ, Plaintiff–Respondent v. DENNY'S CORPORATION, Defendant–Respondent, Gills 04, Inc., Doing Business as Denny's, Anthony Stucchi, Gregory Jones, Defendants–Appellants–Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

177 A.D.3d 1372
114 N.Y.S.3d 147

Hector A. HERNANDEZ, Plaintiff–Respondent
v.
DENNY'S CORPORATION, Defendant–Respondent,

Gills 04, Inc., Doing Business as Denny's, Anthony Stucchi, Gregory Jones, Defendants–Appellants–Respondents, et al., Defendant.

944
CA 19–00422

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

Entered: November 15, 2019

THORN GERSHON TYMANN AND BONANNI, LLP, ALBANY (ERIN MEAD OF COUNSEL), FOR DEFENDANTS–APPELLANTS–RESPONDENTS.

NELSON S. TORRE, BUFFALO, FOR PLAINTIFF–RESPONDENT–APPELLANT.

PRESENT: CENTRA, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

177 A.D.3d 1372

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion in its

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entirety and granting that part of the cross motion seeking summary judgment dismissing the third cause of action, and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when he was arrested by defendants Anthony Stucchi and Gregory Jones, security guards at a Denny's restaurant (restaurant). Defendant Gills 04, Inc. (Gills), doing business as Denny's, was the franchisee of the restaurant and employed Stucchi and Jones, both peace officers, to provide security at the restaurant in the evening and early morning hours of the weekends. Plaintiff also named as a defendant Denny's Corporation (Denny's), the alleged franchisor of the restaurant. Plaintiff moved for, inter alia, summary judgment on the issue of liability with respect to his causes of action for malicious prosecution, false arrest, and assault and battery, and defendants cross-moved for summary judgment dismissing the complaint. Supreme Court, inter alia, granted the motion in part with respect to the causes of action for false arrest and assault and battery and granted the cross motion in part by dismissing the complaint against Denny's. Gills, Stucchi, and Jones (defendants) now appeal, and plaintiff cross-appeals.

Contrary to plaintiff's contention on his cross appeal, the court properly denied that part of his motion with respect to

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the cause of action for malicious prosecution. In a cause of action for malicious prosecution, "a plaintiff must establish that a criminal proceeding was commenced, that it was terminated in favor of the accused, that it lacked probable cause, and that the proceeding was brought out of actual malice" ( Martinez v. City of Schenectady, 97 N.Y.2d 78, 84, 735 N.Y.S.2d 868, 761 N.E.2d 560 [2001] ; see Broughton v. State of New York, 37 N.Y.2d 451, 457, 373 N.Y.S.2d 87, 335 N.E.2d 310 [1975], cert denied 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 [1975] ). Plaintiff was charged with trespass and disorderly conduct, but he was acquitted of the charges upon a nonjury verdict. Without considering the other elements of this cause of action, we conclude that the evidence submitted by plaintiff in support of his motion raised a triable issue of fact whether there was probable cause to arrest him for those charges and that he thus failed to establish his entitlement to judgment as a matter of law on the issue of liability with respect to the malicious prosecution cause of action (see generally Gisondi v. Town of Harrison, 72 N.Y.2d 280, 283, 532 N.Y.S.2d 234, 528 N.E.2d 157 [1988] ). "The existence or absence of probable cause becomes a question of law to be decided by the court ‘only where there is no real dispute as to the facts or the proper inferences to be drawn therefrom’ " ( Fortunato v. City of New York, 63 A.D.3d 880, 880, 882 N.Y.S.2d 195 [2d Dept. 2009] ). "Where there is ‘conflicting evidence, from which reasonable persons might draw different inferences[,] ... the question [is] for the jury’ " ( Parkin v. Cornell Univ., 78 N.Y.2d 523, 529, 577 N.Y.S.2d 227, 583 N.E.2d 939 [1991] ).

Plaintiff submitted the testimony of Stucchi from the criminal trial, wherein he testified that plaintiff was swearing, belligerent, and hostile when Stucchi approached him in the restaurant. Stucchi instructed plaintiff to leave the restaurant. Plaintiff also submitted surveillance videos from the restaurant, which have no sound, and a cell phone video of the arrest. The videos support Stucchi's testimony that plaintiff did not leave as directed but rather kept talking to the security officers, which would support the charge of trespass (see Penal Law § 140.05 ). To support a charge of disorderly conduct, the

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conduct must " ‘extend[ ] beyond the exchange between the individual disputants to a point where it becomes a potential or immediate public problem’ " ( People v. Baker, 20 N.Y.3d 354, 359–360, 960 N.Y.S.2d 704, 984 N.E.2d 902 [2013], quoting People v. Weaver, 16 N.Y.3d 123, 128, 919 N.Y.S.2d 99, 944 N.E.2d 634 [2011] [internal quotation marks omitted]; see § 240.20[3] ). The surveillance videos depict a couple in the restaurant repeatedly looking in plaintiff's direction even before Stucchi and Jones first approached him, thus supporting the inference that plaintiff's conduct was loud and disruptive.

Even assuming, arguendo, that plaintiff met his initial

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