Williams v. CVS Pharmacy, Inc.

• Decision Date: 18 March 2015
• Docket Number: 2014-03716
• Parties: Latoya WILLIAMS, respondent, v. CVS PHARMACY, INC., et al., appellants, et al., defendant.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 890
6 N.Y.S.3d 78
2015 N.Y. Slip Op. 02115

Latoya WILLIAMS, respondent
v.
CVS PHARMACY, INC., et al., appellants, et al., defendant.

2014-03716

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

March 18, 2015.

6 N.Y.S.3d 79

McAndrew, Conboy & Prisco, LLP, Melville, N.Y. (Mary C. Azzaretto of counsel), and Edwards Wildman Palmer, LLP, New York, N.Y. (Ethan Davis of counsel), for appellants (one brief filed).

Courtney K. Davy, New York, N.Y., for respondent.

WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, JOSEPH J. MALTESE, and BETSY BARROS, JJ.

Opinion

126 A.D.3d 890

In an action, inter alia, to recover damages for false arrest, malicious prosecution, and assault and battery, the defendants CVS Pharmacy, Inc., and CVS Albany, LLC, appeal from an order of the Supreme Court, Kings County (Lewis, J.), dated February 28, 2014, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the motion of the defendants CVS Pharmacy, Inc., and CVS Albany, LLC, which was for summary judgment dismissing the third cause of action insofar as asserted against them, and substituting therefor a provision granting that branch of the motion, and (2) by deleting the provisions thereof denying those branches of the same motion which were for summary judgment dismissing the first, second, and fourth causes of action insofar as asserted against those defendants, and substituting therefor provisions denying those branches of the motion without prejudice to renewal upon the completion of discovery; as so modified, the order is affirmed, with costs payable to the plaintiff.

The plaintiff commenced this action against, among others, CVS Pharmacy, Inc., and CVS Albany, LLC (hereinafter together the CVS defendants). Shortly after they filed their answer, the CVS defendants moved for summary judgment dismissing the complaint insofar as asserted against them.

The Supreme Court properly denied those branches of the CVS defendants' motion which were for summary judgment

126 A.D.3d 891

dismissing the first and second causes of action, which alleged false arrest and malicious prosecution, respectively, insofar as asserted against them as time-barred. “Causes of action based on false arrest ... accrue upon the subject's ‘release [ ] from confinement’ and are governed by a one-year statute of limitations” (Bellissimo v. Mitchell, 122 A.D.3d 560, 560, 995 N.Y.S.2d 603, quoting Charnis v. Shohet, 2 A.D.3d 663, 663, 768 N.Y.S.2d 638 [citations omitted]; see Roche v. Village of Tarrytown, 309 A.D.2d 842, 843, 766 N.Y.S.2d 46 ). “The one-year statute of limitations applicable to a cause of action for malicious prosecution (see CPLR 215[3] ) does not begin to run until favorable termination of the underlying criminal proceeding” (Roman v. Comp USA, Inc., 38 A.D.3d 751, 752, 832 N.Y.S.2d 270 [citation

6 N.Y.S.3d 80

omitted]; see Martinez v. City of Schenectady, 97 N.Y.2d 78, 84, 735 N.Y.S.2d 868, 761 N.E.2d 560 ; 347 Cent. Park Assoc., LLC v. Pine Top Assoc., LLC, 83 A.D.3d 689, 690, 919 N.Y.S.2d 892 ; Roche v. Village of Tarrytown, 309 A.D.2d at 843, 766 N.Y.S.2d 46 ).

Here, the CVS defendants failed to meet their initial burden of demonstrating that the plaintiff commenced this action more than one year following her release, or more than one year following the favorable termination of the underlying criminal proceeding against her. Accordingly, the Supreme Court properly denied those branches of the CVS defendants' motion which were for summary judgment dismissing the first and second causes of action insofar as asserted against them as time-barred (see CPLR 215[3] ), regardless of...