The following papers having been read on this motion: Notice of Motion (County Defendants) 1 Notice Cross-Motion (Optometric and Wianecha) 2 Opposition (Plaintiff) 3 Reply 4 Reply 5 Defendants Lopera, Dunleavy, Nassau County Police Department, and Nassau County (hereinafter collectively “the County Defendants”) move this Court for an order, pursuant to CPLR §3212, seeking judgment as a matter of law dismissing Plaintiff’s complaint against them in its entirety. Defendants Optometric and Wianecha have cross-moved, also pursuant to CPLR §3212, seeking dismissal of Plaintiff’s complaint as asserted against them. Plaintiff has opposed both motions, and the Court has received reply for both the motion and cross-motion. After review and consideration, both the motion and the cross-motion are granted in their entirety and the complaint and action are hereby dismissed forthwith. On July 6, 2017, Plaintiff entered the office of Defendants Optometric and Wianecha, seeking to discuss an issue she was having with her prescription eyeglasses. Defendant Wianecha, shortly thereafter, was informed by a staff member of Defendants Optometric that Plaintiff had been in the office and removed a pair of eyeglasses without paying for them. Subsequent thereto, according to the deposition testimony of Defendant Wianecha, Plaintiff was given a few days by a staff member of Defendant Optometric to return the frames, and if Plaintiff did not, they would notify Defendant Nassau County Police Department. On or about July 18, 2017, Defendant Wianecha went to Defendant Nassau County Police Department and reported the incident; furthermore, on this date, she signed a deposition to support a criminal complaint against Plaintiff for the incident. That same day, Plaintiff was requested to appear at an office of Defendant Nassau County Police Department. Upon her arrival on July 19, 2017, Plaintiff was placed under arrest and issued a desk appearance ticket for a petit larceny charge against her stemming from the incident. The papers before the Court indicate that these charges were eventually dismissed by the Nassau County District Attorney’s Office. Plaintiff now asserts six causes of action against all Defendants for claims including false arrest, false imprisonment, malicious prosecution, libel, defamation, and agency or respondeat superior. It should be noted that Plaintiff’s complaint numbers these claims first, second, third, sixth, seventh, and eighth, respectively. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 (1968). To make a prima facie showing, the motion must be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. Id. Once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Id.; see also Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980). In support of the motion, the County Defendants have submitted a copy of the pleadings, the deposition transcripts from Plaintiff, Defendant Wianecha, and Defendant Lopera, as well as a copy of a properly authenticated surveillance video of the incident, amongst other things. See Torres v. Hickman, 162 AD3d 821, 79 NYS3d 62 (2nd Dept., 2018). When considered together, this Court is satisfied that the County Defendants have established their entitlement to judgment as a matter of law. The evidence before the court indicates that the County Defendants had sufficient probable cause to detain Plaintiff, thus establishing a complete defense to Plaintiff’s first, second, and third causes of action, sounding in false arrest, false imprisonment, and malicious prosecution. See Burns v. City of New York, 2020 NY Slip Op 01474, 181 AD3d 554 (2nd Dept., 2020); see also Braxton v. City of New York, 178 AD3d 1000, 115 NYS3d 408 (2nd Dept., 2019). Furthermore, considering the statements made by the County Defendants were, to the best of their knowledge, true and correct from the evidence provided to them, and there is not any evidence before the Court to indicate that the statements contained in the criminal complaint filed by the County Defendants was false, Plaintiff’s sixth and seventh causes of action must also fail. See Cahill v. County of Nassau, 17 AD3d 497, 793 NYS2d 190 (2nd Dept. 2005); see also Maun v. Edgemont at Tarrytown Condominium, 156 AD3d 873, 67 NYS3d 660 (2nd Dept. 2017). Thus the County Defendants have successfully shifted the burden to Plaintiff to demonstrate the existence of a triable issue of fact remaining sufficient to deny the motion. Prior to consideration of Plaintiff’s opposition, expediency requires this Court to first consider the cross-motion as well. Reviewing same, this Court finds that Defendants Optometric and Wianecha have also satisfied their prima facie entitlement to judgment as a matter of law dismissing Plaintiff’s first, second, third, sixth, and seventh causes of action as well. These cross-moving Defendants never confined Plaintiff, thus an essential element is absent for Plaintiff’s false arrest and false imprisonment claims. See Capellupo v. Nassau Health Care Co., 97 AD3d 619, 948 NYS2d 362; see also Ali Saleh Moshad Ali v. City of New York, 122 AD3d 888, 998 NYS2d 64 (2nd Dept. 2014). In addition to the foregoing reasoning applicable to the County Defendants, Defendants Optometric and Wianecha not only had probable cause to seek assistance from the County Defendants for this incident, but much like the County Defendants, there is not any evidence of malice, which is an essential element for a malicious prosecution claim. See Rush v. County of Nassau, 51 AD3d 762, 858 NYS2d 685 (2nd Dept., 2008). The remaining causes of action sounding in libel and slander as asserted against Defendants Optometric and Wianecha are also unfounded given the same truth as discussed above. Therefore, Defendants Optometric and Wianecha have satisfied their burden and have also now shifted the burden to Plaintiff to demonstrate the existence of a triable issue of fact. A review of Plaintiff’s opposition papers to both motions reveals that no such triable issue can be found. Plaintiff has failed to include in her opposition papers any additional evidence whatsoever, instead relying on the same evidence already provided in the moving papers. Although the affirmation of Plaintiff’s counsel attempts to create a triable issue of fact where none exists, such affirmation lacks any evidentiary value, given counsel’s lack of personal knowledge of the underlying facts. Browne v. Castillo, 288 AD2d 415, 733 NYS2d 494 (2nd Dept., 2001). Thus, in the absence of a triable issue of fact, both the motion and the cross-motion are properly granted as to Plaintiff’s first, second, third, sixth, and seventh causes of action. See Silverstein v. New York City Police Department, 167 AD3d 961, 90 NYS3d 230 (2nd Dept. 2018). Additionally, given the dismissal of all five causes of action against all Defendants, the eighth and final claim remaining as asserted against the County Defendants and Defendants Optometric and Wianecha sounding in agency, or respondeat superior, cannot stand. See Pangburn v. Buick Motor Co., 211 NY 228, 105 NE 423 (1914). Accordingly, the remaining portions of the motion and cross-motion are also granted in full, and Plaintiff’s complaint is hereby dismissed against all Defendants. The County Defendants shall file and serve a copy of the within order with notice of entry upon Plaintiff and Defendants Optometric and Wianecha within thirty (30) days from the date of this order. This hereby constitutes the decision and order of this Court. Dated: April 14, 2020
