Maxie v. Gimbel Bros. Inc.

• Decision Date: 26 December 1979
• Citation: 423 N.Y.S.2d 802,102 Misc.2d 296
• Parties: Ella MAXIE and George Maxie, Plaintiffs, v. GIMBEL BROS. INC., Kenneth Olsen and William Gessner, Defendants.
• Court: New York Supreme Court

Page 802

423 N.Y.S.2d 802

102 Misc.2d 296

Ella MAXIE and George Maxie, Plaintiffs, v. GIMBEL BROS. INC., Kenneth Olsen and William Gessner, Defendants.

Supreme Court, Individual Calendar, New York County, Part 11.

Dec. 26, 1979.

Glaser & Blitz, New York City, for plaintiff

Semel, McLaughlin & Boeckmann, New York City, for defendant.

SHANLEY N. EGETH, Justice:

There are occasions when a routine and uncomplicated issue may arise in a context which compels a resolution of other tangential problems of complexity and import, or necessitates a discussion of related matters of significance. This motion presents such a situation. It mandates a discussion and determination of the permissible limits in civil litigation of the use of the privilege created by CPL 160.50 concerning the sealing of records in a criminal prosecution after acquittal. It also necessitates a review of the nature, objective, extent and powers applicable to the pretrial settlement conference. This subject has acquired a unique timeliness in view of Chief Judge Cooke's recent declaration of a state of a judicial emergency and his call for a total mobilization of the energies and resources of the bench and bar to combat calendar congestion in civil cases.

The Action

This is an action for damages on a claim of false imprisonment and malicious prosecution. The action stems from an arrest of the plaintiff on June 15, 1976 on a complaint of larceny which was initiated by the defendant department store (Gimbels). It appears that a preliminary hearing was conducted, plaintiff was then held for trial and was thereafter acquitted of all charges after trial. Subsequent thereto the records in the criminal case were sealed pursuant to CPL 160.50.

The Motion

The defendant has moved for an order directing the plaintiff to execute and deliver to it a consent and authorization which would enable said defendant to procure the records of the criminal proceedings arising out of the incident upon which this action is predicated. Those records in the First District Court, Nassau, are presently sealed pursuant to CPL 160.50, following the acquittal in that Court.

Origin of Motion

The motion now made results from initiatives originally undertaken by this Court during a pretrial conference. After the case appeared on the trial calendar of IC Part 11, this Court held a series of conferences in an effort to effectuate a mediative

amicable adjustment of the differences between the parties, or if not possible, to narrow potential trial issues, or if appropriate, to invite a motion or procedure which might be dispositive of all or part of the case without necessity of a full jury trial. During an inquiry and exchange relating to applicable facts and law, the Court inquired as to the existence and disposition of a preliminary hearing in the criminal proceeding. Neither counsel was certain as to whether such a hearing was held, or as to its outcome. The Court observed that this information was vital to a valid evaluation of the prospects of success at trial, and further, that it might justify an appropriate motion for summary judgment or partial summary judgment. It was agreed that the defendant would attempt to procure the necessary records. The case was adjourned for a further conference at which time the records were to be available. After delays and a number of conference adjournments, the defendant finally made a motion in Nassau County to procure the records. The motion was denied upon the grounds that the record was sealed and privileged pursuant to CPL 160.50, and that it was unavailable without the authorization of the plaintiff herein (defendant in the criminal proceeding). This was reported to the Court at a subsequent conference. The defendant asked plaintiff for the necessary authorization. Plaintiff's attorney refused, stating that he was not required to supply material which might be detrimental to his client's case, and further, that this constituted additional discovery which was presently barred by the calendaring of the case and the service of a statement of readiness.

Calendar Rules

Plaintiff asserts that the instant application constitutes belated discovery which is now barred inasmuch as a note of issue and statement of readiness have long ago been served. (CPLR 3402(a); Rules for Bronx and New York County Supreme Court, 22 NYCRR 660.4(d)).

The Court does not agree. Even if the initial application for disclosure had originally been made by the defendant, rather than at the instigation of the Court, as is the instant case, this Court still would possess authority to permit belated disclosure in pursuit of justice to respond to unusual or unanticipated circumstances. (Fidler v. Public Constructors, Inc., 39 A.D.2d 827, 333 N.Y.S.2d 39 (disclosure authorized to "sharpen the issues and materially shorten the * * * trial") Shea v. Pellicane, 29 A.D.2d 840, 287 N.Y.S.2d 732, app. dsmd. 22 N.Y.2d 753, 292 N.Y.S.2d 130, 239 N.E.2d 220; Pioneer Jewelry Corp. v. All Continent Corp., 24 A.D.2d 436, 260 N.Y.S.2d 700, see Cassidy v. Kolonsky, 37 A.D.2d 880, 325 N.Y.S.2d 145; cf. 68 Fifth Ave. Rest. Inc. v. 59 Rest. Corp., 37 A.D.2d 780, 325 N.Y.S.2d 381 (where party possessed peculiar knowledge); Farrell v. Reed, 16 A.D.2d 709, 226 N.Y.S.2d 815 (peculiar knowledge); 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3402.12.) The supervision of disclosure is vested in the Court in which the action is pending (Smith v. Victory Container Corp., 30 A.D.2d 581, 289 N.Y.S.2d 710; CPLR 3103(a)). Justice (now Chief Judge) Cooke analyzed the enforcement, application and rationale of the statement of readiness rule in his opinion in Wahrhaftig v. Space Design Group, Inc., 33 A.D.2d 953, 954, 306 N.Y.S.2d 863, 866 (1970). He clearly indicated that rigid enforcement is to be encouraged to "relieve calendar congestion and to foster the orderly disposition and processing of litigated matters".

Obviously if the demands of justice dictate nonenforcement of the rule, or if the justice presiding, who is entrusted with wide discretion in control of his calendar (see Galante v. Cohen's Quality Bakery, 31 A.D.2d 997, 297 N.Y.S.2d 870; Cohn v. Borchard Affiliates, 30 A.D.2d 74, 75, 289 N.Y.S.2d 771, 772), determines that relief of calendar congestion and orderly processing of the litigated matter will better be served by compelling rather than restricting discovery, such a judge possesses the power to attain this goal. (Wahrhaftig v. Space Design Group, Inc., supra; see Barry v. Mut. Life Ins. Co., 53 N.Y. 536, 539; Gillet v. Beth Israel Medical Center, 99 Misc.2d 172, 415 N.Y.S.2d 738). Clearly, the Supreme In the instant situation this Court on its own initiative requested the material now sought in order to render meaningful its conference function, and to appropriately limit and frame the proper issues for trial.

Court has the inherent authority to deal with cases before it in an appropriate manner (Teitelbaum Holdings, Ltd. v. Gold, 48 N.Y.2d 51, 54, 421 N.Y.S.2d 556, 557, 396 N.E.2d 1029, 1030 (Oct., 1979); Langan v. First Trust & Deposit Co., 270 App.Div. 700, 62 N.Y.S.2d 440, affd. 296 N.Y. 1014, 73 N.E.2d 22).

Relevance of Records

The nonexistence of probable cause is essential for the successful maintenance of an action for malicious prosecution (Broughton v. State of New York, 37 N.Y.2d 451, 457, 373 N.Y.S.2d 87, 93, 335 N.E.2d 310, 314 (1975); cert. denied, Schanbarger v. Kellogg, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257; Graham v. Buffalo General Laundries Corp., 261 N.Y. 165, 184 N.E. 746; Wallenstein v. Rosenbaum, 241 App.Div. 374, 272 N.Y.S. 346; Trottier v. West, 54 A.D.2d 1025, 388 N.Y.S.2d 180). In this type of action a "prima facie rule" has developed pursuant to which a finding of probable cause by a grand jury indictment or in a preliminary hearing creates a rebuttable presumption that the prosecution was induced by probable cause. This presumption may only be overcome by a showing of fraud, perjury, or the misrepresentation or falsification of evidence at the preliminary hearing or to the grand jury (Broughton v. State, supra; Trottier v. West, supra); although earlier cases which may still have continued validity after Broughton would indicate that some other grounds may be available to overcome the presumption (Graham v. Buffalo General Laundries Corp., supra; Wallenstein v. Rosenbaum, supra; Beall v. Dadirrian, 62 Misc. 125, 115 N.Y.S. 196, affd. 133 App.Div. 943, 118 N.Y.S. 1094). It should also be noted that the Appellate Division, First Department, has recently applied this prima facie rule and granted summary judgment in favor of a defendant when the plaintiff failed to meet the burden of setting forth evidentiary facts to rebut the presumption created by an indictment (Johler v. Consolidated Laundries Corp., 54 A.D.2d 632, 387 N.Y.S.2d 439).

In an action for false imprisonment or false arrest, the acquittal after trial or other dismissal of the criminal action is not dispositive of the civil suit. The key issue in the civil action involving a department store is whether the defendant had "reasonable grounds" for the detention (GBL § 218; Jacques v. Sears, Roebuck & Co., Inc., 30 N.Y.2d 466, 334 N.Y.S.2d 632, 285 N.E.2d 871 (1972)).

The Broughton case holds that the "prima facie rule" and its presumption is only applicable to a malicious prosecution action, and not to an action for false imprisonment. It does hold, however, that in a false imprisonment case, a finding of probable cause in a preliminary hearing is "some proof of the presence of probable cause" (37 N.Y.2d page 458, 373 N.Y.S.2d page 95, 335 N.E.2d page 315). There is case authority indicating that the statutory "reasonable grounds" and probable cause are coextensive (Tota v. Alexander's, 63 Misc.2d 908, 314 N.Y.S.2d 93, affd. 38 A.D.2d 892, 330 N.Y.S.2d 295, see also Mullen v. Sibley, Lindsay & Curr Co., App.Div., 421 N.Y.S.2d 490 (4th Dept. 1979)). Hence, this proof is...