| LoFaso v City of New York |
| 2009 NY Slip Op 07159 [66 AD3d 425] |
| October 6, 2009 |
| Appellate Division, First Department |
| Sandy LoFaso et al., Appellants, v City of New York etal., Defendants, and Metropolitan Life Insurance Company, Inc., et al.,Respondents. |
—[*1] Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), forrespondents.
Order, Supreme Court, New York County (Paul G. Feinman, J.), entered January 30, 2008,which, in an action arising out of a physical altercation between plaintiff Sandy LoFaso anddefendant Crowe, two adult tenants of a housing development, on the development's grounds,insofar as appealed from as limited by the briefs, granted the motion by the development'sowner, defendant Metropolitan Life Insurance Company (Met Life), and its security division andofficers, for summary judgment dismissing as against them the causes of action for false arrest,malicious prosecution, defamation, intentional infliction of emotional distress, and loss ofconsortium, unanimously affirmed, without costs.
LoFaso's claims are based on allegations that Crowe, an off-duty police officer, was theaggressor, and that Met Life and its security officers failed to investigate the incident andimportuned the police to arrest him. The claims for false arrest and malicious prosecution lackmerit as probable cause existed to arrest and prosecute LoFaso (see Martinez v City ofSchenectady, 97 NY2d 78, 84, 85 [2001]; Burns v City of New York, 17 AD3d 305 [2005]). Such probablecause is shown by the criminal complaint that was sworn out by the arresting police officer,which avers that LoFaso was arrested and charged with assault based on Crowe's statement tothe arresting officer that LoFaso had punched him in the jaw causing a serious physical injurythat required hospital admission (seeIorio v City of New York, 19 AD3d 452 [2005]). Furthermore, there is no evidence thatanyone from Met Life accused LoFaso of anything, let alone affirmatively induced orimportuned the officer to arrest him (seeOszustowicz v Admiral Ins. Brokerage Corp., 49 AD3d 515, 516 [2008]); indeed, thesecurity officer's report identified Crowe as the assailant. Even assuming, arguendo, that MetLife supplied "false" information to the police (i.e., that it omitted from the incident report thatCrowe had shown his badge to a Met Life security guard and told the latter to "lose" him in thebuilding), these omissions would not undermine the finding of probable cause, given no evidencethat the alleged omissions contributed to the decision to arrest LoFaso (see Brown v SearsRoebuck & Co., 297 [*2]AD2d 205, 210 [2002]).
LoFaso's other causes of action also lack merit. The defamation cause of action was properlydismissed for failure to set forth the particular words complained of (CPLR 3016 [a]), and indeedit is only on the appeal that LoFaso advances, for the first time, that he was defamed by the"summary" prepared by Met Life personnel. In any event, it appears that this "summary" was aninternal memorandum that was never published to LoFaso's neighbors; to the extent LoFasoclaims that he was defamed by the statement that he was arrested for assault, truth provides acomplete defense (see Silverman vClark, 35 AD3d 1, 12 [2006]); and to the extent LoFaso claims that he was defamed bythe statement that Crowe sustained "a broken jaw," Crowe reasonably believed that he hadsustained a broken jaw based on the fact that he had received treatment for a jaw injury at thehospital and, although a fracture was ruled out, he was discharged with a diagnosis ofmalocclusion status-post trauma and internal jaw derangement. The claim for intentionalinfliction of emotional distress does not allege conduct that could be considered beyond allpossible bounds of decency or utterly intolerable (see Brown, 297 AD2d at 212); in anyevent, there being no evidence that any omissions or false statements by Met Life personnel tothe police played any role in the decision to arrest LoFaso, no issue of fact is raised as to theexistence of a causal connection between Met Life's allegedly outrageous conduct and LoFaso'sinjury (see id.). LoFaso's complaint fails to allege that Met Life violated his civil rights,and any such claim would in any event be without merit. Dismissal of LoFaso's claims requireddismissal of his wife's claim for loss of consortium. Concur—Saxe, J.P., Sweeny,Moskowitz, Acosta and Richter, JJ.