| Oszustowicz v Admiral Ins. Brokerage Corp. |
| 2008 NY Slip Op 01930 [49 AD3d 515] |
| March 4, 2008 |
| Appellate Division, Second Department |
| Stephen Oszustowicz et al., Appellants, v AdmiralInsurance Brokerage Corp. et al., Respondents. |
—[*1] Borchert, Genovesi, LaSpina & Landicino, P.C., Whitestone, N.Y. (Anthony J. Genovesi, Jr.,and Stephen J. Smith of counsel), for respondents.
In an action, inter alia, to recover damages for false arrest and false imprisonment, theplaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, KingsCounty (Saitta, J.), dated January 30, 2007, as granted those branches of the defendants' motionwhich were pursuant to CPLR 3211 (a) (7) to dismiss the first, second, and third causes of action.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant Peter Evangelista, the owner and president of the defendant AdmiralInsurance Brokerage Corp. (hereinafter Admiral), learned that the plaintiff, Stephen Oszustowicz(hereinafter the plaintiff), employed by Admiral as an insurance representative and salesman,issued certificates of insurance from Admiral to various companies although the companies hadnot, in fact, purchased those insurance policies. These certificates contained false information,such as fictitious insurance policy numbers and issuance notations, and were signed by theplaintiff. Evangelista terminated his employment, and contacted law enforcement authorities toreport what the plaintiff had done. The plaintiff was arrested and charged with the crimes ofcriminal possession of a forged instrument in the third degree and criminal possession of afraudulent instrument in the second degree. The criminal matter, however, was never prosecutedby the Kings County District Attorney's Office. The plaintiffs commenced the instant lawsuitalleging, in the first, second, and third causes of action, that the defendants were responsible forfalse arrest and imprisonment, that the defendants' acts were "egregious," and that the plaintiffsustained certain damages and suffered various [*2]consequencesas a result. The defendants moved, inter alia, pursuant to CPLR 3211 (a) (7), to dismiss the first,second, and third causes of action for failure to state a cause of action. The Supreme Courtgranted that motion. We affirm the order insofar as appealed from.
On a motion pursuant to CPLR 3211 (a) (7) to dismiss a cause of action, a court must acceptthe facts alleged in support of that cause of action as true, and accord the plaintiff the benefit ofevery favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). If the factsas alleged do not fit within any cognizable legal theory, the cause of action must be dismissed(see Leon v Martinez, 84 NY2d at 88).
Applying these principles here, the Supreme Court correctly determined that the complaintfailed to set forth a cause of action to recover damages for false arrest and false imprisonment. Inorder for a civilian defendant to be considered to have initiated the criminal proceeding, "it mustbe shown that defendant played an active role in the prosecution, such as giving advice andencouragement or importuning the authorities to act" (Viza v Town of Greece, 94 AD2d965, 966 [1983]; see Mesiti v Wegman, 307 AD2d 339, 340 [2003]; Brown v SearsRoebuck & Co., 297 AD2d 205, 209 [2002]). "The defendant must have affirmativelyinduced the officer to act, such as taking an active part in the arrest and procuring it to be madeor showing active, officious and undue zeal, to the point where the officer is not acting of hisown volition" (Mesiti v Wegman, 307 AD2d at 340, quoting 59 NY Jur 2d, FalseImprisonment and Malicious Prosecution § 37).
The plaintiffs' remaining contention concerning the issue of malicious prosecution isimproperly raised for the first time on appeal (see Sarva v Chakravorty, 34 AD3d 438, 439 [2006]; Sandoval vJuodzevich, 293 AD2d 595 [2002]; Orellano v Samples Tire Equip. & Supply Corp.,110 AD2d 757, 758 [1985]). Rivera, J.P., Miller, Dillon and Belen, JJ., concur.