The following papers were read on the motion of defendant STAPLES THE OFFICE SUPERSTORE EAST, INC.[Mot. Seq. 1](Staples), made pursuant to CPLR 3211(a)(5) and (a) (7), for an order granting summary judgment dismissal of the complaint as against plaintiff MICAH OVERBY (plaintiff), and the cross-motion of plaintiff [Mot. Seq. 4], pursuant to CPLR 3025, for an order denying Staples’ motion and granting plaintiff leave to amend the complaint as against defendants Staples, WENDELL ERIC FABIAN, DETECTIVE GIANPAOLO DILISIO #36, POLICE OFFICER MONTESANO #42, and VILLAGE OF ELMSFORD (defendants): PAPERS Notice of Motion, Affirmation, Exhibits A-D, and Memorandum of Law Notice of Cross-motion, Affirmation in Opposition to Motion and in Support of Cross-Motion, Exhibits A-C and Memorandum of Law Memorandum of Law in Support of Motion as a Reply and in Opposition to Cross-Motion Staples’ Supplemental Memorandum of Law, Affirmation and Exhibit A Plaintiff’s Supplemental Affirmation, Memorandum of Law, and Exhibits A-D Mot. Seqs. 1, 41 DECISION/ORDER Upon the foregoing papers, the court determines as follows: In 2013, plaintiff began working for Staples as a copy and print associate at the Tarrytown Road Staples in Elmsford, NY. Plaintiff alleges that he acquired a second job in 2014, and informed the Staples manager of the second position. In his spare time, plaintiff performed copy and print work for customers if Staples either did not offer the services or could not complete the request in the required time frame. In return, plaintiff accepted, among other things, Staples gift cards-usually for personal use and occasionally to resell. On August 27, 2015, plaintiff was called into the Staples general manager’s office and was confronted by the general manager and defendant Wendell Eric Fabian (Fabian). Police officers were waiting outside, although as to who called them and the time of their arrival is unclear. Plaintiff alleges that the two Staple employees accused plaintiff of committing fraud against the store. The two men aggressively questioned and interrogated plaintiff using confrontational, guilt-presumptive law enforcement tactics, in an attempt to extract a false statement to the general effect that plaintiff committed fraud or theft. Plaintiff claims that he informed the employees that he made purchases with gift cards that he acquired from his personal clients. Plaintiff claims that he was intimidated and scared and wrote a statement dictated to him by Fabian, in which plaintiff admitted to committing a crime, that he claims he did not actually commit. After the statement was signed, defendant called the Elmsford police, who placed plaintiff under arrest and filed a felony complaint against plaintiff accusing him of grand larceny in the third degree, in violation of N.Y. Penal Law 155.35. Following his arrest, plaintiff was arraigned and bail was set. Unable to immediately post bail, plaintiff was detained for about nine days. All charges were dismissed against plaintiff on February 8, 2017, and the record for the proceeding was sealed. On October 13, 2017, plaintiff filed an amended complaint alleging state law claims for malicious prosecution, negligent hiring, training, retention, and supervision, and coercion, in the United States District Court for the Southern District of New York (federal court), along with several federal statutory claims against Staples and various municipal actors and entities. On July 11, 2018, the federal court dismissed the action. In terms of the federal claim of malicious prosecution, and the connected claim of false arrest, alleged against Officer Montesano and Detective Dilisio, the federal court reiterated that, as part of the claim, the defendant officers must have not possessed probable cause at the time that the judicial proceeding is commenced. The court found, however, that based on plaintiff’s statement, and the facts provided to the law enforcement officers by the Staples employees, the two officers had probable cause to arrest plaintiff. In reaching this conclusion, the court specifically held that the fact that the probable cause was allegedly based on the uncorroborated statement of Fabian, an allegedly unreliable civilian, need not be considered because “those allegations were not available to the arresting officer at the time of the arrest. In any event, plaintiff’s statement corroborated Fabian’s statement and is in and of itself a basis for probable cause. Because the arresting officers had probable cause, or at least arguable probable cause to arrest plaintiff, the federal claim” of malicious prosecution was dismissed as against them, with prejudice. With regards to the remaining state causes of action for malicious prosecution, the state law claims were dismissed without prejudice. This action was commenced by the summons and complaint on September 14, 2018. On December 5, 2018, defendants Dilisio, Montesano and the Village of Elmsford filed a Notice of Appearance. On December 6, 2018, Staples filed a motion [Mot. Seq. 1], made pursuant to CPLR 3211(a)(5) and (a) (7), for an order granting summary judgment dismissal of the complaint. On February 18, 2019, plaintiff filed the cross-motion [Mot. Seq. 4], pursuant to CPLR 3025, for an order denying Staples’ motion and granting plaintiff leave to amend the complaint as against defendants. After oral argument, the parties were granted time to submit additional briefs on the issues raised at oral argument.2 While in the original complaint plaintiff alleges causes of action of malicious prosecution, negligent hiring, training, supervision and retention and coercion, in the cross-motion, plaintiff seeks permission to serve an amended complaint that only asserts a cause of action for malicious prosecution. As such, in terms of the motions presently before the court, only a cause of action for malicious prosecution remains at issue herein. [NYSCEF No. 43]. The court’s analysis begins with the basic tenet of CPLR 3025(b), which provides, that at any time during the proceeding, leave to amend pleadings shall be freely given upon such terms as may be just including the granting of costs and disbursements. A motion for leave to amend a pleading should be freely given in the absence of prejudice or surprise to the opposing party, unless the proposed amendment is palpably devoid of merit (Gioio v. Ching Fu Lin, 173 AD3d 982 [2d Dept 2019]). Thus, a party opposing leave to amend must overcome a heavy presumption of validity in favor of permitting amendment (Cortes v. Jing Jeng Hang, 143 AD3d 854 [2d Dept 2016]). Further, whether to grant such leave is within the motion court’s discretion, the exercise of which will not be lightly disturbed (Gioio v. Ching Fu Lin, supra; Pergament v. Roach, 41 AD3d 569, 572 [2d Dept 2007]). To the extent that Staples argues that the motion to amend must be denied because of undue delay, the court finds that, based on the record, the delay resulting from granting the proposed amendedment under the facts presented is insubstantial. As such, as for that argument, Staples fails to satisfy the heavy burden necessary to warrant the denying of the request to serve an amended complaint. Hence, the court must next determine whether the proposed cause of action for malicious prosecution is palpably insufficient or patently devoid of merit (Silverman v. Potruch & Daab, LLC, 142 AD3d 660 [2d Dept 2016]; North Am. Sav. Bank, FSB v. Esposito-Como, 141 AD3d 706 [2d Dept 2016]) or the proposed amended complaint would be futile (Castillo v. Starrett City, Inc., 4 AD3d 320 [2d Dept 2004]; Saferstein v. Mideast Sys., Ltd., 143 AD2d 82 [2d Dept 1988]). To reach a conclusion as to this issue, the court must resolve Staples’ motion to dismiss. Staples’ Motion [Mot. Seq. 1] CPLR 3211 (a)(5) — collateral estoppel The doctrine of collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same (Jamal v. Caroline Garden Tenants Corporation, 173 AD3d 843 [2d Dept 2019]; Clifford v. County of Rockland, 140 AD3d 1108 [2d Dept 2016]). Collateral estoppel comes into play when four conditions are fulfilled: (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits (Jamal v. Caroline Garden Tenants Corporation, supra; Clifford v. County of Rockland, supra). The party seeking to invoke collateral estoppel has the burden to show the identity of the issues, while the party trying to avoid application of the doctrine must establish the lack of a full and fair opportunity to litigate (Jamal v. Caroline Garden Tenants Corporation, supra; Clifford v. County of Rockland, supra). Where a federal court declines to exercise jurisdiction over a plaintiff’s state law claims, collateral estoppel may still bar those claims provided that the federal court decided issues identical to those raised by the plaintiff’s state claims (Clifford v. County of Rockland, supra; see Ji Sun Jennifer Kim v. Goldberg, Weprin, Finkel, Goldstein, LLP, 120 AD3d 18 [1st Dept 2014]). The essential elements of an action to recover damages for malicious prosecution here are (1) the initiation of an action, (2) its termination favorably to defendant, (3) lack of probable cause, and (4) malice (Place v. Ciccotelli, 121 AD3d 1378 [3d Dept 2014]; see Michaels v. MVP Health Care, Inc., 167 AD3d 1368 [3d Dept 2018]). Staples argues that the cause of action for malicious prosecution in the amended complaint sets forth the same facts and issues as were alleged in the federal action, “albeit in service of [plaintiff's] claim against Staples this time instead of the [police officers]” [NYSCEF No. 20,p12]. Staples contends that, therefore, the federal court’s finding that the police officers, from their point of view and knowledge of the facts, had probable cause to arrest plaintiff is determinative of the issue of probable cause in this action based on principles of collateral estoppel. In essence, Staples alleges that the federal court’s finding of probable cause for the arrest on the part of the police officers is binding here, and, therefore, the malicious prosecution cause of action is palpably insufficient or patently devoid of merit because plaintiff cannot satisfy the third element of the claim as a matter of law. A plaintiff can show a lack of probable cause for the criminal proceeding, however, through proof that the defendant has not made a full and complete statement of the facts to the police, grand jury or District Attorney, has misrepresented or falsified the evidence or else kept back evidence which would affect the result, which requires pleading intentional or knowing conduct on the part of a defendant (Michaels v. MVP Health Care, Inc., supra; Lupski v. County of Nassau, 32 AD3d 997 [ 2d Dept 2006]). Here, plaintiff pleaded such allegations and none of the affidavits or documentary evidence submitted by defendants definitively disposes of the claims (see Michaels v. MVP Health Care, Inc., supra). Hence, the federal court’s finding that the police officers, based on the information that they acquired from defendants, had probable cause to arrest plaintiff, is not determinative of whether defendants knowingly failed to make a full and complete statement of the facts to the police, grand jury or District Attorney, misrepresented or falsified the evidence or else kept back evidence which would affect the result. Because the determination of probable cause here depends on an evaluation of facts and inferences to be drawn from facts that were not determined in the federal action, the cause of action for malicious prosecution is not barred by principles of collateral estoppel (see Michaels v. MVP Health Care, Inc., supra). CPLR 3211 (a)(7)-failure to state a cause of action Turning to CPLR 3211 (a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action. In considering such a motion, the court must accept the facts as alleged in the complaint to be true, and accord plaintiff the benefit of every possible favorable inference, in determining whether the facts as alleged fit within any cognizable legal theory (DeMarzo v. DeMarzo, 150 AD3d 1202 [2d Dept 2017]; Rodriguez v. Daily News, L.P., 142 AD3d 1062 [2d Dept 2016]). A motion to dismiss should be granted only where, upon viewing the allegations as true, plaintiff cannot establish a cause of action (Sokoloff v. Harriman Estates Dev. Corp., 96 NY2D 409 [2001]; Leon v. Martinez, 84 NY2d 83, 87 [1994]; Anderson v. Armentano, 139 AD3d 769 [2d Dept 2016]). However, where evidentiary material is submitted and considered on a motion to dismiss complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one (Gutierrez v. McGrath Mgt. Servs., Inc., 152 AD3d 498 [2d Dept 2017]). As stated previously, the essential elements of an action to recover damages for malicious prosecution here are (1) the initiation of an action, (2) its termination favorably to defendant, (3) lack of probable cause, and (4) malice. Generally, the remedy for a party against whom a false criminal complaint is filed, if any, lies in the tort of malicious prosecution (Michaels v. MVP Health Care, Inc., supra; Liss v. Forte, 96 AD3d 1592 [4th Dept 2012]). A prima facie cause of action for malicious prosecution may be shown where the relevant witness did not provide a full and complete statement of the facts either to the magistrate or to the District Attorney, misrepresented or falsified the evidence, or else kept back information or facts which might have affected the result (Higgins v. Goyer, 162 AD3d 1191 [3d Dept 2018]; Place v. Ciccotelli, 121 AD3d 1378 [3d Dept 2014]). Allegations that a complainant has knowingly provided false information to the police or withheld information from police, consequently, have been found to be sufficient to state that the complainant initiated the proceeding by playing an active role in the other party’s arrest and prosecution (Michaels v. MVP Health Care, Inc., supra; Higgins v. Goyer, supra; Place v. Ciccotelli, supra). Here, there is no question that the criminal proceeding terminated in plaintiff’s favor. There are allegations that Staples knowingly provided false information to the police. Plaintiff alleges that no probable cause existed to support Stapes’ initiation of the criminal proceeding, Staples’ conduct was motivated by malice, and Staples, by its agents, knowingly and maliciously fabricated and coerced plaintiff into giving a false statement, which defendants used to manufacture probable cause. Further, Staples engaged in retaliatory actions to initiate a criminal proceeding against plaintiff under fraudulent auspices. Hence, plaintiff’s allegations, possibly supported by the dismissal of the relevant criminal charges by the District Attorney, that Staples knowingly provided false information to the police concerning the incident in retaliation for a personal dispute, are sufficient to set forth a cause of action (Michaels v. MVP Health Care, Inc., supra; Higgins v. Goyer, supra; Place v. Ciccotelli, supra). Staples’ explanation for its actions merely creates factual issues which are based on credibility issues. Hence, the complaint sets forth a cause of action. Plaintiff’s Motion [Mot. Seq.4] for permission to amend the complaint pursuant to CPLR 3025 Based on the above, the court finds that the proposed cause of action for malicious prosecution is not palpably insufficient or patently devoid of merit (Silverman v. Potruch & Duab, LLC, supra), nor is the proposed amended complaint futile (Castillo v. Starrett City, Inc., supra). Accordingly, the cross-motion of plaintiff [Mot. Seq. 4], pursuant to CPLR 3025, for an order denying Staples’ motion and granting plaintiff leave to amend the complaint as set forth in the proposed amended complaint as against defendants is granted. The court has considered the additional contentions of the parties not specifically addressed herein. To the extent any relief requested by either party was not addressed by the court, it is hereby denied. Accordingly, it is hereby ORDERED the motion of defendant STAPLES THE OFFICE SUPERSTORE EAST, INC.[Mot. Seq. 1](Staples), made pursuant to CPLR 3211(a)(5) and (a) (7), for an order granting summary judgment dismissal of the complaint as against plaintiff MICAI-I OVERBY (plaintiff), is denied; and it is further ORDERED the cross-motion of plaintiff [Mot. Seq. 4], pursuant to CPLR 3025, for an order denying Staples’ motion and granting plaintiff leave to amend the complaint as against defendants Staples, WENDELL ERIC FABIAN, DETECTIVE GIANPAOLO DILISIO #36, POLICE OFFICER MONTESANO #42, and VILLAdE OF ELMSFORD (defendants) is granted; and it is further ORDERED that the amended complaint is deemed served upon all appearing parties as of the date of the upload of this decision with notice of entry into NYSCEF; and it is further ORDERED that defendants are directed to file answers in accordance with the time constraints set forth in the CPLR; and it is further ORDERED that the parties shall appear at the Preliminary Conference Part of the Court, Room 811, on December 2, 2019, at 9:15 am. The foregoing constitutes the Decision/Order of the court. Dated: October 11, 2019 White Plains, New York
