Kaba v. Zara U.S., Inc.
| Decision Date | 27 March 2023 |
| Docket Number | Index No. 157434/2022,MOTION SEQ. No. 001 |
| Citation | 2023 NY Slip Op 30930 (U) |
| Parties | SIDIKABAH KABA, ADAMA HAIDARA, MOHAMED HAIDARA Plaintiff, v. ZARA USA, INC., ABC CORP., JOHN OR JANE DOE 1 - 5, Defendant. |
| Court | New York Supreme Court |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 were read on this motion to/for DISMISS.
In August 2022, plaintiffs Sidikabah Kaba, Adama Haidara, and Mohamed Haidara commenced this action against Zara USA (hereinafter "Zara"), an unknown independent contractor ("ABC Corp."), and the five security guards employed by them (referred to in the complaint as "John or Jane Doe 1-5") at a Zara apparel store located at 1963 Broadway, New York, New York. Plaintiffs allege that defendants falsely accused them of shoplifting called the police on them, and caused them to be detained while knowing the identity of the actual shoplifter to be a different customer. Based on these allegations, they have asserted six causes of action against defendants-for slander per se, negligent hiring and supervision, assault and battery, false arrest and imprisonment, and unlawful discrimination under both the New York State Human Rights Law ("NYSHRL") and the City Human Rights Law ("NYCHRL"). In this motion sequence, Zara has moved pursuant to CPLR 3211 (a) (7) to dismiss each cause of action. Plaintiffs oppose the motion in its entirety. The motion is granted in part.
On September 9, 2021, plaintiffs, all of whom are black or African American men, purchased items at Zara's 1963 Broadway, New York store. Around this same time, Zara's security guards observed another black male attempting to steal items of clothing by secreting them into a shopping bag. According to the complaint, the security guards then observed the shoplifter abandon the bag and leave the store. (NYSCEF doc. no. 1 at ¶ 17-18, complaint.) As alleged, one of the security guards called the New York City Police Department and reported that plaintiffs had been the ones who were attempting to steal or were friends with the shoplifter. The officers who responded to Zara's report detained and questioned plaintiffs, as well as searched their persons and effects while in the store and within view of the public. (Id. at 23-24.) Police questioned and detained plaintiffs "for several minutes" before Zara's security team allegedly admitted to them that they had watched the shoplifter leave. (Id. at ¶25.)
As described above, plaintiffs have brought six causes of action against defendants. Zara now moves to dismiss each cause of action against it pursuant to CPLR 3211 (a) (7).
On a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7), courts afford the pleadings a liberal construction, accept the facts as alleged in the complaint as true, and give the plaintiff the benefit of every possible favorable inference. (Leon v Martinez, 84 N.Y.2d 83, 87 [1994]; JF Capital Advisors, LLC v Lightstone Group, LLC, 25 N.Y.3d 759 764 [2015].) However, the court need not accept as true bare legal and factual conclusions. (Vig v New York Hairspray Co., 67 A.D.3d 140,145 [1st Dept 2009].) The courts' inquiry is limited to assessing the legal sufficiency of the plaintiffs pleadings; accordingly, its only function is to determine whether the facts as alleged fit within a cognizable legal theory. (JF Capital Advisors, 25 N.Y.3d at 764.)
On motions to dismiss causes of action for slander per se, in addition to applying the above-described CPLR 3211 (a) (7) principles, courts must also assess whether the plaintiff has included "the particular words complained of' within the complaint. (See CPLR 3016, titled "Particularity in specific actions".) The requirement that a plaintiff allege the "exact words" that constitute the cause of action is strictly enforced. (Abe's Rooms Inc. v Space Hunters Inc., 38 A.D.3d 690, 693 [2d Dept 2007]; see Romanello v Intesa Sanpaolo S.P.A., 97 A.D.3d 449 [1st Dept 2012] [].)
Plaintiffs' cause of action for slander per se is deficient on its face because it fails to allege the precise, exact words that Zara used in reporting the alleged theft to New York City police officers. The complaint is only so specific as to allege that Zara, the unidentified corporation or one of the security guards at the store "called the New York City Police Department and reported Plaintiffs as having stolen property." (NYSCEF doc. no. 1 at ¶23.) Plaintiffs then admit in their opposition papers that they do not know the precise statements made to the police "because at the time Defendant Zara, by and through its agents.. .made such statements, Plaintiffs were not within earshot." (NYSCEF doc. no. 10 at ¶l 7, aff. in opposition.) Elsewhere in their opposition, plaintiffs contend that it has satisfied CPLR 3016's particularity pleading standard because there is a connection between Zara and the responding officers. For them, "the numerous NYPD officers shown in the video who all arrived at the same location did not converge on Plaintiffs accidentally or by coincidence." (Id. at ¶20.) That the officers responded to Zara's call, however, is immaterial: at best, it simply suggests that Zara believed plaintiffs were the shoplifters without providing any sort of detail as to what was said. Accordingly, it does not excuse the failure to plead the exact words. (See BCRE 230 Riverside LLC v Fuchs, 59 A.D.3d 282, 283 [1st Dept 2009] []; Manas v VMS Assoc LLC, 53 A.D.3d 451,454-455 [1st Dept 2008] [Where defamatory words were only paraphrased in such a manner that the "actual words were not evident from the face of the complaint, the long-standing rule is that dismissal is required"].) Lastly, plaintiffs' argument that discovery is needed to obtain the exact words, and therefore the cause of action should not be dismissed, is unpersuasive given that several avenues exist for obtaining the sought-after material including through a FOIL request with the New York Police Department.
Properly pleading a cause of action for false arrest and imprisonment requires plaintiffs to allege: (1) defendant intended to confine them; (2) they were conscious of the confinement; (3) they did not consent to the confinement; and (4) the confinement was not otherwise privileged. (See Rivera v City of New York, 40 A.D.3d 334, 341 [1st Dept 2007].) Here. Zara only challenges whether plaintiff has adequately alleged that it, as opposed to the New York City Police Department, effectuated plaintiffs' confinement. Where the alleged confinement is undertaken by New York City police officers, as opposed to the private entity/store owner or one of their agents, liability will not be imposed on the private entity if they '"merely made [a] statement, leaving it to the officer to act or not as he thought proper.'" (Du Chateau v Metro-North Commuter R.R. Co., 253 A.D.2d 128, 132-133 [1st Dept 1999], quoting Vernes v Phillips, 266 NY 298, 301 [1935].) Instead, private actors may become liable for false arrest or imprisonment only where they have "actively participated" in the confinement by directing, encouraging, or instigating the officer to take plaintiff into custody (Du Chateau, 253 A.D.2d 128 at 132; Celnick v Freitag, 242 A.D.2d 436, 437 [1st Dept 1997]), importuning the officers to act (Wieder v Home Depot U.S.A., Inc., 208 A.D.3d 535, 538 [2d Dept 2022]), or where the private entity has made police offers their agents in effecting arrest (Carrington v City of New York, 201 A.D.2d 525, 527 [2d Dept 1994]). "
As pled, there is no indication that Zara's involvement in plaintiffs' confinement was anything more than reporting plaintiffs' possible involvement in the theft to police. There are no allegations that Zara or its agents and employees "affirmatively induced the officer[s] to act" or took any other active role in the confinement. (See Mesiti v Wegman, 307 A.D.2d 339, 340 [2d Dept 2003].) Accordingly, plaintiffs have not adequately pled a cause of action for false arrest or imprisonment against Zara.
Plaintiffs' arguments in opposition are unavailing. "Singling out Plaintiffs to police as purported shoplifters" does not rise to the level of "assisting police in detaining questioning, and searching Plaintiffs." (NYSCEF doc. no 10 at ¶ 27.) The doctrine of transferred intent- whereby, for example, a defendant intends to commit an intentional tort against one individual but, in the process of committing that tort, mistakenly injures another-is inapplicable to false arrests of the type presented here. First, plaintiffs' theory is internally inconsistent. As alleged in the complaint, Zara knew the identity of the shoplifter throughout the incident but nonetheless intended to confine plaintiffs, using the police to effectuate their purpose. Yet, to apply here, the doctrine of transferred intent requires that Zara's intentional conduct against other individuals unintentionally injured plaintiffs. Put differently, for Zara to be liable to plaintiffs, plaintiffs would have to show that Zara intended for the police officers to (falsely) detain/arrest other individuals but instead, for whatever reason, their conduct...
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