Menio v. Akzo Salt Inc.

• Decision Date: 07 December 1995
• Citation: 217 A.D.2d 334,634 N.Y.S.2d 802
• Parties: Thomas J. MENIO, Appellant, v. AKZO SALT INC. et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 802

634 N.Y.S.2d 802

217 A.D.2d 334

Thomas J. MENIO, Appellant, v. AKZO SALT INC. et al., Respondents.

Supreme Court, Appellate Division Third Department.

Dec. 7, 1995.

Barney, Grossman, Roth & Dubow (Hugh C. Kent, of counsel), Ithaca, for appellant.

Thaler & Thaler (Doyle C. Valley, of counsel), Ithaca, for Akzo Salt Inc. and others, respondents.

Lo Pinto, Schlather, Solomon & Salk (Raymond M. Schlather, of counsel), Ithaca, for Ronald H. Pierce, respondent.

Before MIKOLL, J.P., and CREW, YESAWICH, PETERS and SPAIN, JJ.

PETERS, Justice.

Appeals (1) from that part of an order of Supreme Court (William N. Ellison, J.), entered October 26, 1994 in Schuyler County, which partially granted defendants' motions for summary judgment dismissing the first and second causes of action of the complaint, and (2) from an order of said court, entered March 20, 1995 in Schuyler County, which, inter alia, granted defendant Ronald H. Pierce's cross motion for summary judgment dismissing the fifth cause of action against him.

In October 1986, a wooden tank used by defendant Akzo Salt Inc. to store salt brine solution ruptured and exploded. As a result thereof, wood pieces from the sides of the tank were strewn about. With Akzo's consent, Calvin Coons, Akzo's maintenance supervisor, allowed employees to take the scrap wood for their personal use in an effort to clean up the surrounding area. Although Coons was aware that Akzo did not want employees to remove wood from the base of the tank, such information was not disseminated to the employees. Thus, over the ensuing 3 1/2 years following the explosion, wood from both the sides and the base of the tank disappeared.

In January 1990, defendant James A. Edwards, the maintenance supervisor for Akzo, noticed that about three quarters of the base wood was missing. Considering it to be of value, Edwards contacted various supervisors to prevent further taking of the wood and spoke with defendant James A. Loose, the plant manager, and defendant Ronald H. Pierce, the personnel department supervisor, to determine who removed the wood. At Edwards' instigation, a complaint was filed with the Schuyler County Sheriff's Department reporting the wood missing. Upon investigation, it was discovered that plaintiff had base wood at his residence valued by Edwards at $1,093. Upon rejection of Akzo's ultimatum that plaintiff resign or be fired and charged with a felony, plaintiff was fired, arrested and charged with felony possession of stolen property.

A preliminary hearing was held by the Town Court of the Town of Dix in Schuyler County where witnesses were called and plaintiff was represented by counsel. At the conclusion thereof, the court dismissed the felony charges and directed the District Attorney to file an information charging plaintiff with petit larceny. While the charges were pending, plaintiff filed a grievance with his union which resulted in an evidentiary hearing. The arbitrator found, at the conclusion thereof, that Akzo had given unwritten "blanket permission" to take the wood and that plaintiff had been wrongfully discharged under the union's collective bargaining agreement. Such determination later became the basis for a reversal of an initial denial of unemployment insurance benefits. Upon removal of the criminal action to the Town Court of the Town of Reading, the charges were dismissed on plaintiff's motion for a lack of evidence. Plaintiff commenced the instant action seeking damages for, inter alia, malicious prosecution. After issue was joined and depositions conducted, the malicious prosecution causes of action were dismissed upon defendants' motions. ¹ Plaintiff appeals.

Supreme Court held that the malicious prosecution causes of action must fail, as a matter of law, since plaintiff could not establish an essential element of such action--a lack of probable cause (see, Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248). While the Magistrate's determination to sustain the complaint, made after the preliminary hearing, created a presumption of probable cause (see, Landsman v. Moss, 133 A.D.2d 359, 360, 519 N.Y.S.2d 262; see also, Brown v. Roland, 215 A.D.2d 1000, 1001, 627 N.Y.S.2d 791, 792), it has been recognized that such presumption can be overcome by a showing of "fraud, perjury or the withholding of evidence" (Brown v. Roland, supra, at 1001, 627 N.Y.S.2d at 793). Plaintiff initially contends that such presumption was overcome by the favorable rulings of both the arbitrator and the Unemployment Insurance Appeal Board upon the doctrine of collateral estoppel. We disagree.

Although an arbitrator's determination can be given preclusive effect (see, Matter of American Ins. Co. [Messinger-Aetna Cas. & Sur. Co.], 43 N.Y.2d 184, 189-190, 401 N.Y.S.2d 36, 371 N.E.2d 798), we cannot so find in the instant case due to the absence of the transcript of the underlying...