DECISION & ORDER Upon the papers filed in support of the application and the papers filed in opposition thereto, and after hearing oral arguments, it is ORDERED that Defendants’ Motion #001 seeking dismissal of the Plaintiffs Complaint pursuant to CPLR 3211(a), for failure to state a cause of action, is granted. ORDERED that Defendant Vento’s Motion #002 seeking dismissal of the Plaintiffs Complaint pursuant to CPLR 3211(a), CPLR 3013, and CPLR 3016, is granted. PROCEDURAL HISTORY This action was commenced on November 19, 2020, by the Plaintiff, Christopher Hughes (hereinafter “Plaintiff), with the filing of a Summons and Complaint. The Summons and Complaint was then amended on December 9, 2020 and served on all Defendants. The Plaintiff brought this action upon claims that he was unlawfully arrested on December 13, 2019, after he was captured on amateur video allegedly removing money from a cash box at a charity event held at Defendant Blessed Sacrament School (hereinafter “BSS”) on or about November 24, 2019. The charges against the Plaintiff for Petit Larceny and Possession of Stolen Property were ultimately dismissed “in the interest of justice” by the Richmond County District Attorney’s Office. Plaintiff brings Causes of Action as follows: First Cause of Action for Negligent Hiring, Training and Supervision (against Defendant BSS); Second Cause of Action for Abuse of Process; Third Cause of Action for Defamation; Fourth Cause of Action for Intentional infliction of Emotional Distress; Fifth Cause of Action for Unlawful and False Imprisonment; Sixth Cause of Action for Malicious Prosecution; Seventh Cause of Action for Negligent Infliction of Emotional Distress; and Eighth Cause of Action for Prima Facie Tort. DEFENDANTS’ MOTIONS TO DISMISS Defendants Joseph Cocozello (principal of Blessed Sacrament School), Blessed Sacrament School, New York Archdiocese, and Catholic School Region of Staten Island (hereinafter “School Defendants”) brought Motion #001 to dismiss pursuant to CPLR 3211(a)(7), as they contend that the pleading fails to state a cause of action. Defendant Vento brought Motion #002 to dismiss pursuant to CPLR 3211(a)(7), CPLR 3103, and CPLR 3016. CPLR 3211(a)(7) provides that “A party may move for judgment dismissing one or more causes of action asserted against him on the ground that…the pleading fails to state a cause of action.” The Court will consider “whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail.” Guggenheimer v. Ginzburg, 43 NY2d 268,275 (1977). Courts have repeatedly granted motions to dismiss where the factual allegations in the claim were merely conclusory and speculative in nature and not supported by any specific facts.” See Residents for a More Beautiful Port Washington, Inc. v. Town of North Hempstead, 153 AD2d 727 [2d Dept. 1989]; Stoianoff v. Gahona, 248 AD2d 525 [2d Dept. 1998]. “Upon a motion to dismiss a complaint pursuant to CPLR 3211, a court must take the allegations in the complaint as true and resolve all inferences in favor of the plaintiff.” Morris v. Gianelli, 71 AD3df 965. 967 [2d Dept 2010]. A motion to dismiss should be granted where the Complaint fails to “contain allegations concerning each of the material elements necessary to sustain recovery under a viable legal theory.” Matlin Patterson A TA Holdings LLC v. Fed. Express Corp., 87 AD3d 836, 839 (1st Dept. 2011). Dismissal pursuant to CPLR 3211(a)(7) is warranted if the evidentiary proof disproves an essential allegation of the complaint, even if the allegations of the complaint, standing alone, could withstand a motion to dismiss for failure to state a cause of action. Korinsky v. Rose, 120 AD3d 1307, 1308 (2d Dept. 2014). In order to determine the motions, the Court will address each cause of action separately and analyze the requisite elements to sustain a valid cause of action against any of the Defendants. First Cause of Action: Negligent Hiring, Training and Supervision The Cause of Action for Negligent Hiring, Training, and Supervision was brought by the Plaintiff against Defendant BSS only. To adequately plead a cause of action based upon negligent hiring, supervision, or retention, a Plaintiff must plead that the “employer knew or should have known of the employee’s propensity for the conduct which caused the injury.” See KM v. Fencers Club, Inc., 164 AD3d 891, 892 (2d Dept. 2018). “Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training.” Wienclaw v. East Islip Union Free Sch. Dist., 192 AD3d 945 (2dDept. 2021). “There is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee.” See KM v. Fencers Club, Inc., 164 AD3d 891, 893 (2d Dept. 2018). The injuries described in the Amended Complaint are alleged by the Plaintiff to be the proximate result of the negligence of the Defendant BSS to exercise reasonable care in the hiring, employment, supervision and training of Defendant Cocozello and Defendant Vento. It is specifically alleged by Plaintiff that Defendant Cocozello was not trained in appropriate investigative techniques, proper supervision of school activities and failing to take appropriate corrective action after he was informed that Defendant Vento installed a surveillance camera inside the school. Plaintiff further alleges that Defendant BSS should have investigated Defendant Vento based upon his installation of cameras and his “outrageous Facebook posts.” It is undisputed that Defendant BSS did not know that Defendant Vento installed a surveillance camera, until after the charity event was held. Plaintiff alleges that “many internal complaints” were made about the charity event and Defendant Vento’s involvement and that he made a complaint about Defendant Vento to Defendant Cocozello, who “promised to investigate.” Plaintiff further alleges that Defendant Vento instigated and had several heated exchanges with the Plaintiff. Plaintiff’s Complaint fails to sufficiently describe the alleged tortious conduct of the Defendants Vento and Cocozello that Defendant BSS knew or should have known of. Further, Defendant Vento is not even an employee of Defendant BSS, but a parent volunteer. As a result of the foregoing, the First Cause of Action for negligent hiring, training and supervision, is dismissed. Second Cause of Action: Abuse of Process Plaintiffs Second Cause of Action purports to seek recovery upon an allegation against Defendants for Abuse of Process. To sustain a claim for abuse of process, a Plaintiff must plead three elements: 1) regularly issued process, either civil or criminal; 2) intent to do harm without excuse or justification; and 3) use of the process in a perverted manner to obtain a collateral objective.” Uriano v. Suozzi, 63 NY2d 113,116 (1984). A malicious motive alone “does not give rise to a cause of action for abuse of process.” Id. Plaintiff alleges that the Defendants misused the criminal justice system and had the Plaintiff falsely arrested. Plaintiff further alleges that the Defendants acted maliciously by providing false information to several media outlets. “In its broadest sense, abuse of process may be defined as the misuse or perversion of regularly issued legal process for a purpose not justified by the nature of the process.” Bd. Of Ed. Of Farmingdale Union Free Sch. Distr. V. Farmingdale Classroom Teachers Ass’n, Inc., Local 1889 AFT AFL-CIO, 38 NY2d 397, 400 (1975). “Where process is manipulated to achieve some collateral advantage, whether it be denominated extortion, blackmail, or retribution, the tort of abuse of process will be available to the injured party.” Id. The Plaintiff alleges that the Defendants improperly used the criminal justice system as retaliation, retribution and to ruin the Plaintiffs reputation. However, Plaintiff fails to meet the necessary elements to sustain a claim for abuse of process. Plaintiff’s allegations in the Amended Complaint about the Defendants is purely speculative. For example, Plaintiff states in his affidavit, “the 911 call was made I believe by Defendant Cocozello” and other Defendants “pushed for Plaintiffs arrest” without providing any supporting context or evidence of his conclusory statements. No criminal complaint was submitted as evidence, here is no liability for giving information to legal authorities, as they are left free to use their own judgment in effecting an arrest or bringing a proceeding against a defendant. See Chapo v. Premier Liquor Corp., 259 AD2d 1050 (4lh Dept. 1999). Therefore, the Second Cause of Action for abuse of process is hereby dismissed. Third Cause of Action: Defamation Plaintiffs Third Cause of Action seeks recovery for the tort of defamation. The elements for a cause of action for defamation are: a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace; published without privileges or authorization to a third party; amounting to fault as judged by, at a minimum a negligence standard; and either causing special harm or constituting defamation per se. Greenberg v. Spitzer, 155 AD3d 27 (2d Dept. 2017). Defamation claims are subject to the heightened pleading requirement of CPLR 3016(a) which requires that “the particular words complained of shall be set forth in the complaint…” New York favors the dismissal of defamation claims where the Plaintiff has failed to allege specific facts and has made only conclusory allegations of malice. See Harm v. Lawson, 70 AD3d 6t40 (2d Dept. 2010). Defamation per se requires that the defendant’s statements have hurt plaintiff’s trade, business, or profession and further prove that the defamation is of a kind incompatible with his business, trade or profession. The words alleged to constitute the defamation must be construed in the context of the entire statement “and if not reasonable susceptible of a defamatory meaning, they are not actionable.” Dillon v. City of NY 261 AD3d 35, 1st Dept. 1999. The Plaintiff alleges that the defamation statements were made by the defendants to the New York Post and/or the Staten Island Advance. The Plaintiff, in his Complaint, did not articulate with any specificity the details of the alleged defamatory statements, nor did he state with specificity who allegedly made the defamatory statements. Plaintiff only speculated in his affidavit that one of the defendants “tipped off or “leaked” information to the press and the source was “most likely Defendant Vento or Defendant Cocozello.” The news articles, attached as exhibits, did not attribute any statements to the Defendants, but quoted police sources. Any statements made by the Defendants for the purpose of a criminal complaint were protected by a qualified privilege. See Zapata v. Tufenkijian, 123 AD3d 814, 816 (2d Dept. 2014). Based upon the foregoing, the Third Cause of Action for defamation is hereby dismissed. Fourth Cause of Action: Intentional Infliction of Emotional Distress To survive a motion to dismiss an intentional infliction of emotional distress claim, plaintiff must have alleged that there was: “1) extreme and outrageous conduct, 2) intent to cause, or disregard of a substantial probability of causing, severe emotional distress, 3) a causal connection between the conduct and injury; and 4) severe emotional distress.” Howell v. NY Post, 81 NY2d 115, 121 (1993). Specifically, a plaintiff must identify conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Murphy v. Am. Home Prods. Corp., 58 NY2d 293, 303 (1983). Plaintiff alleges that the Defendants intentionally inflicted emotional distress by the combination of alleged acts, including, by allegedly having him falsely arrested and allegedly leaking his arrest to the media. As similarly stated within the defamation cause of action, the Plaintiff failed to state, with any specificity, the details of the conduct of the Defendants. The Plaintiff failed to allege conduct by the Defendants, with any specificity, that was “outrageous” and “extreme in degree.” Further, a Plaintiff cannot recover for both intentional infliction of emotional distress and defamation, as the causes of action in this matter are duplicative. See Brancaleon v. Mesagna, 290 AD2d 467. 468 (2d Dept. 2002) and Bacon v. Nygard, 140AD3d577. 578 (Is’ Dept. 2016). Therefore, the Fourth Cause of Action for intentional infliction of emotional distress is hereby dismissed. Fifth Cause of Action: Unlawful and False Imprisonment To prevail on a cause of action for false arrest or imprisonment, the “plaintiff must show that 1) the Defendant intended to confine him; 2) the plaintiff was conscious of the confinement; 3) the plaintiff did not consent to the confinement; and 4) the confinement was not otherwise privileged.” Broughton, 37 NY2d 451,456 (1975). “It is not enough that the Defendant’s words or actions caused a police officer to confine him; plaintiff must show that the defendant directed an officer to take him into custody.” DuChateau v. Metro North Commuter RR Co., 253 AD2d 128, 132 (1st Dept. 1999). Further, to sustain a cause of action for false arrest and false imprisonment against a civilian complainant, a plaintiff must show that the defendant took an active role in the arrest of the plaintiff, such as giving advice and encouragement or imprortuning the authorities to act, and that the defendant intended to confine the plaintiff. See DeFilippo v. County of Nassau, 183 AD2 695 (1992). A showing of probable cause constitutes a complete defense to a claim of false arrest. Fausto v. City of New York, 17 AD3d 305 [2d Dept. 2005]. The allegations made by the Plaintiff regarding the Defendants’ “active role” in his arrest were purely speculative and based upon hearsay. Further, Plaintiff does not deny that there was video surveillance that showed the Plaintiff removing cash from a fundraiser and placing it in his pocket. Based upon the video, and the Plaintiffs concession that he removed the funds, any reasonable person would believe that a crime was committed and probable cause for his arrest existed. The miscommunication between the Plaintiff, Defendants, and PTA Treasurer does not give rise to a claim for false arrest. Therefore, the Fifth Cause of Action for unlawful and false imprisonment is hereby dismissed. Sixth Cause of Action: Malicious Prosecution The elements for malicious prosecution are: 1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff; 2) the termination of the proceeding in favor of the accused; 3) the absence of probable cause for the criminal proceeding and 4) actual malice. DeLourdes Torres v. Jones, 26 NY3d 742, 760 (2016). The Plaintiff has a “heavy burden” in overcoming “the strong public policy of open access to the courts for all parties without fear of reprisal in the form of a retaliatory lawsuit.” Moorehouse v. Standard NY 124 AD3d 1, 7(lstDept. 2014). A civilian defendant who merely furnishes information to law enforcement authorities, who are then free to exercise their own independent judgment as to whether an arrest will be made and criminal charges filed, will not be held liable for false arrest or malicious prosecution.” Johnson v. Follett Higher Education Group, Inc. 113 AD3d 819, (2d Dept 2014). As outlined above, the Sixth Cause of Action for malicious prosecution must be dismissed based upon the existence of probable cause for the Plaintiffs arrest. It must also further be dismissed because Plaintiff has failed to show any actual malice in the proceedings brought against him. Seventh Cause of Action: Negligent Infliction of Emotional Distress A cause of action to recover damages for negligent infliction of emotional distress requires the Plaintiff to show a “breach of duty owed to her which unreasonably endangered her physical safety or caused him to fear for his own safety.” Sacino v. Warwick Valley Cen. School Distr. 138 AD3d 717, 719 (2d Dept. 2016). Though Plaintiff alleges emotional injury, there is no claim for a breach of duty, nor the existence of any duty, between the Plaintiff and Defendants. The Plaintiff was a parent volunteer at a school function. The actions allegedly taken by the Defendants, either by reporting a crime or providing surveillance video to authorities, did not unreasonably endanger the physical safety of the Plaintiff. Therefore, the Seventh Cause of Action for negligent infliction of emotional distress is hereby dismissed. Eighth Cause of Action: Prima Facie Tort The elements for prima facie tort are 1) intentional infliction of harm; 2) causing special damages; 3) without excuse or justification, and 4) by an act or series of acts that would otherwise be lawful. Curiano v. Suozzi, 63 NY2d 113, 117 (1984). The first element of a prima facie tort requires a showing of “disinterested malevolence,” which means a plaintiff must plead the defendant’s malicious intent or disinterested malevolence as the sole motive for the challenged conduct. Ahmed Elkoulily, MD PC, 153 AD3d 708 (2d Dept,. 2017). A conclusory allegation that a defendant’s conduct was motivated solely by malice and disinterested malevolence is not sufficient, rather sufficient facts that give rise to the plausible inference that the defendants acted with the sole purpose of inflicting intentional harm must be pled.” Id. Again, as with the allegations detailed above, the plaintiff failed to plead this cause of action with any specificity and instead relied on speculation as to the motives of the Defendants. Therefore, the Eight Cause of Action for prima facie tort is hereby dismissed. CONCLUSION As a result of the analysis above, the Plaintiff has failed to maintain any of the causes of action plead in his Complaint, based upon his failure to meet the elements of each claim. The action is hereby dismissed. This constitutes the Decision and Order of this Court. Dated: June 24, 2021
