Nevin v. Citibank, N.A.
| Citation | 107 F.Supp.2d 333 |
| Decision Date | 28 July 2000 |
| Docket Number | No. 00 CIV. 0029(CM).,00 CIV. 0029(CM). |
| Parties | Carriene NEVIN, Plaintiff, v. CITIBANK, N.A., et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Barbara Lerman, White Plains, NY, for Plaintiff.
John M. Flannery, Wilson, Elser, Moskowitz, Edelman & Discker, LLP, White Plains, NY, for Town of Eastchester and Police Defendants.
Michael M. Horowitz, Gilroy Downes Horowitz & Goldstein, New York City, for May Department Stores, Lord & Taylor and Robert Bottass.
J. Kelley Nevling, Jr., Levi Lubarsky & Feigenbaum LLP, New York City, for Citibank, S.D., Citibank, N.A., and Citicorp Credit Services, Inc.
Plaintiff, an African-American woman, sued her credit card company, a department store and the town police following an incident during which her credit card was blocked and she was questioned by police concerning possible unauthorized use of the card. She brought a variety of state and federal civil rights claims and common law tort claims based on her theory that the action taken by Defendants constituted "racial profiling" motivated by racial animus. Defendants have moved to dismiss the case and/or for summary judgment. For the reasons stated below, Defendants' motions are granted and the case is dismissed.
The following are the facts, viewed in a light most favorable to the Plaintiff:
On June 18, 1999, Carriene Nevin, an African-American woman, took her Citibank Visa card to the Lord & Taylor store at Vernon Hills Shopping Center in Eastchester.1 Nevin was a frequent shopper at that Lord & Taylor, and had never experienced any problems or discrimination at the store. Nevin bought a great deal of merchandise in a variety of departments, including children's clothes, lingerie and men's clothes. After Nevin completed the bulk of her purchases, she went to get her car to bring it to the front of the store to collect her packages. On the way to the parking lot, she stopped and purchased some cologne. She took the package of cologne with her to the car, and then drove to the front, where a Lord & Taylor employee helped her load the other packages. According to her own testimony, she drove away, but returned to the store some time later to give that employee a $20 tip.
This behavior attracted the attention of Robert Bottass, a security officer employed by Lord & Taylor. Bottass watched Nevin on the closed-circuit video monitors and observed what she was doing. (Am.Cplt.¶ 53.) After ascertaining the identity of the bank that issued the credit card, Bottass called either Citibank or Citicorp Credit Service, Inc. ("CCSI") to report that a "black female was making large purchases with a Citibank Visa card" and that "she makes the purchases, she puts the merchandise in her vehicle and returns to the store." (Am.Cplt.¶ 22.) The credit card had not been reported lost or stolen. (Am.Cplt.¶ 30.)
In response to Bottass' call, Citibank/CCSI put a stop on the card and called the Nevin home to ascertain whether the card was being misused. The person who answered the first call hung up before the CCSI representative could obtain the necessary information. A second call to the home went unanswered.
Nevin completed her business at Lord & Taylor and proceeded to another store, Charisma, where her credit card was declined. Plaintiff was told she would have to talk to her credit card company to clear up any problems. Because she was in a hurry, Plaintiff refused to come to the phone at that time, and instead pulled out another card, completed her purchase, and drove home with her merchandise.
In the meantime, Edward McLaughlin, a fraud supervisor at Citibank/CCSI, called Lord & Taylor, and authorized Lord & Taylor to detain the shopper. He told Bottass that Citibank/CCSI suspected that the shopper might be holding a stolen credit card. Because Nevin had already left the premises, Robert Bottass called the Eastchester Police and reported the possible misuse of the credit card. In response to the complaint, Police Officer Anthony Mignone went to Lord & Taylor and met with Bottass, who, according to the police report, described the incident and advised Mignone that Citibank Visa had the card listed as lost or stolen. Bottass provided Officer Mignone with Plaintiff's license plate number.
Police Officer Michael Denning was dispatched to the Nevin home (also located in Eastchester) to investigate. Plaintiff was not there, and Denning asked her husband and mother to have her call the station house when she returned.
When Nevin got home, she realized she forgot one of the jackets she had purchased at Lord & Taylor and returned to the store. After showing her receipt at the counter where she had left the jacket, she took the jacket and returned home for a second time.
Shortly thereafter, Denning and Mignone came to her home and questioned Nevin on the front porch. The encounter took place at 4:30 p.m. and lasted between ten and fifteen minutes. Nevin was not touched, restrained or handcuffed while she was questioned. By her own admission (in testimony given at a New York Gen. Mun. L. § 50-h hearing), Nevin did not try to terminate the conversation or complain to the officers about their presence on her property. She neither tried to leave nor asked the officers if she could leave. Satisfied that no crime had been committed, the detectives left the Nevin residence without asking Plaintiff to come to the station or taking any official action. They concluded that the report was unfounded and closed the file.2
The incident remains alive, however. Nevin has sued everyone involved — Lord & Taylor, its parent corporation and Bottass; Citibank and CCSI and two of their employees; the Town of Eastchester3 and the two officers who questioned her. She contends that she was slandered, otherwise tortiously injured and discriminated against in what she describes as an incident of "racial profiling," a pernicious practice that has been much in the news of late.4
Plaintiff has already agreed to withdraw her claim against McLaughlin and Spitz, who are not amenable to suit in this District. (See Stipulation and Order, April 5, 2000, dismissing claims against defendants McLaughlin and Spitz).
Citibank and CCSI have moved to dismiss the complaint as against them; in the alternative, they ask for summary judgment in their favor. Their motion is granted.
Lord & Taylor, May Company and Robert Bottass have together moved for summary judgment. Their motion is granted and the claims against those Defendants are dismissed.
The Town of Eastchester and the police officers have also moved for dismissal and summary judgment. Their motion is also granted.
Although only the Town Defendants have filed an Answer, all the parties have added a great deal of material to the record, and the Plaintiff has submitted an extensive affidavit in support of her opposition motions. I will therefore treat all three Defendants' motions as motions for summary judgment pursuant to Rules 12(b) and 56(f).5
Plaintiff's Amended Complaint alleges the following against all Defendants: intentional and negligent infliction of emotional distress (fourth and fifth causes of action); prima facie tort (sixth cause of action); false imprisonment (seventh cause of action); deprivation of her rights under New York civil rights laws and the New York Human Rights Law (ninth and tenth causes of action); deprivation of her civil rights under the First and Fourteenth Amendments and 42 U.S.C. § 1981 (); and denial of public accommodations in violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000a (). Plaintiff alleges against May Company, Lord & Taylor and Robert Bottass slander and slander per se (first and second causes of action), and against May Company, Lord & Taylor, Bottass and Citibank/CCSI injurious falsehood (third cause of action). She also alleges a theory of respondeat superior liability (eighth cause of action) against Citibank/CCSI, Lord & Taylor, May Company and the Town of Eastchester.
Summary judgment is appropriate where the parties' submissions "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In ruling on a motion for summary judgment, the court must resolve all ambiguities and draw all inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, to defeat summary judgment, the non-moving party must go beyond the pleadings and "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Plaintiff's allegations against Citibank and CCSI arise from their communications with Lord & Taylor about her credit card account, including the statement that Nevin should be apprehended under suspicion of misuse of the credit card. Citibank and CCSI move to dismiss all the claims asserted against them on the ground that they, as financial institutions, enjoy an unqualified privilege to disclose any possible violation of law without fear of being sued. Defendants make a straightforward argument, and on slightly different facts, they would unquestionably be entitled to dismissal on this ground. On the allegations of the complaint at bar, however, they are not.
In 1992, Congress passed the Annunzio-Wylie Act, which gave the Secretary of the Treasury the power to require banks and other...
To continue reading
Request your trial
-
Watkins v. Town of Webster
...by malice." (Dkt. 19 at 27).Prima facie tort is a "cause of action that is highly disfavored in New York." Nevin v. Citibank, N.A. , 107 F. Supp. 2d 333, 347 (S.D.N.Y. 2000). "The four elements for a prima facie tort in New York State are: (1) intentional infliction of harm, (2) causing spe......
-
Turley v. Isg Lackawanna, Inc.
...relief for plaintiffs upon occasion post- Howell, remains a “highly disfavored [tort] under New York law.” Nevin v. Citibank, N.A., 107 F.Supp.2d 333, 345–46 (S.D.N.Y.2000). It “is to be invoked only as a last resort,” McIntyre v. Manhattan Ford, Lincoln–Mercury, Inc., 256 A.D.2d 269, 270, ......
-
Henneberry v. Sumitomo Corp. of America
...an injurious falsehood claim. Id. While other courts have cited this language from Waste Distillation, see, e.g., Nevin v. Citibank, NA., 107 F.Supp.2d 333, 345 (S.D.N.Y. 2000) ("Under New York law, '[t]he tort of trade libel or injurious falsehood consists of the knowing publication of fal......
-
Lloyd v. City of N.Y.
...... is a "highly disfavored [tort] under New York law," Turley , 774 F.3d at 158 (quoting Nevin v. Citibank, N.A. , 107 F.Supp.2d 333, 345–46 (S.D.N.Y. 2000) ), and it "is to be invoked only ......