Malcolm v. Rite Aid of N.Y., Inc.

• Decision Date: 21 November 2012
• Citation: 954 N.Y.S.2d 587,2012 N.Y. Slip Op. 07964,100 A.D.3d 837
• Parties: Alvin MALCOLM, respondent, v. RITE AID OF NEW YORK, INC., et al., appellants.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 837
954 N.Y.S.2d 587
2012 N.Y. Slip Op. 07964

Alvin MALCOLM, respondent,
v.
RITE AID OF NEW YORK, INC., et al., appellants.

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

Nov. 21, 2012.

[954 N.Y.S.2d 588]

Jeffrey Samel & Partners, New York, N.Y. (David Samel of counsel), for appellants.

WILLIAM F. MASTRO, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

[100 A.D.3d 837]In an action, inter alia, to recover damages for false arrest and false imprisonment, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Martin, J.), dated November 21, 2011, as, upon reargument, adhered to the original determinations in an order of the same court dated April 7, 2010, denying that branch of their motion which was for summary judgment dismissing the complaint, in effect, denying that branch of their motion which was pursuant to CPLR 3216 to dismiss the complaint, and, in effect, granting that branch of the plaintiff's cross motion which was, in effect, pursuant to CPLR 3216 to extend the time to serve and file a note of issue.

ORDERED that the order dated November 21, 2011, is affirmed insofar as appealed from, with costs.

The Supreme Court properly adhered to its original determination in an order dated April 7, 2010, denying that branch of the defendants' motion which was for summary judgment dismissing the complaint. The defendants did not establish their prima facie entitlement to judgment as a matter of law dismissing the causes of action to recover damages for false arrest, false imprisonment, assault, battery, and violation of civil rights based upon the defense afforded to merchants under General Business Law § 218. Since the defendants failed to eliminate triable issues of fact as to whether the defendant Carlyle Byron [100 A.D.3d 838]had reasonable grounds to

[954 N.Y.S.2d 589]

detain the plaintiff, whether the detention was conducted in a reasonable manner, and whether the detention was for a reasonable duration of time, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing those causes of action ( seeGeneral Business Law § 218; Waynes v. BJ's Wholesale Club, Inc., 97 A.D.3d 659, 948 N.Y.S.2d 641;Restrepo v. Home Depot U.S.A., Inc., 92 A.D.3d 857, 938 N.Y.S.2d 818;Sada v. Kohl's Dept. Stores, Inc., 79 A.D.3d 1121, 913 N.Y.S.2d 567). Further, the defendants did not establish that they were entitled...