| Passucci v Home Depot, Inc. |
| 2009 NY Slip Op 08652 [67 AD3d 1470] |
| November 20, 2009 |
| Appellate Division, Fourth Department |
| Michael Passucci, Respondent, v The Home Depot, Inc., et al.,Appellants. |
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Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), enteredAugust 13, 2008. The order, insofar as appealed from, denied the motion of defendants forsummary judgment.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs, the motion is granted and the first amended complaint is dismissed.
Memorandum: Plaintiff commenced this action seeking damages for defendants' allegedmalicious prosecution and "infliction of emotional distress." Plaintiff also sought damages basedon the alleged negligent training and supervision of employees by The Home Depot, Inc. andThe Home Depot Special Services, Inc. (collectively, Home Depot defendants).
We agree with defendants that Supreme Court erred in denying that part of their motion forsummary judgment dismissing the malicious prosecution cause of action. A plaintiff assertingsuch a cause of action " 'must establish that a criminal proceeding was commenced, that it wasterminated in favor of the [plaintiff], that it lacked probable cause, and that the proceeding wasbrought out of actual malice' " (Watson v City of Jamestown, 56 AD3d 1289, 1291[2008], quoting Martinez v City of Schenectady, 97 NY2d 78, 84 [2001]). In the contextof a malicious prosecution cause of action, probable cause "consists of such facts andcircumstances as would lead a reasonably prudent person in like circumstances to believeplaintiff guilty" (Colon v City of New York, 60 NY2d 78, 82 [1983], reargdenied 61 NY2d 670 [1983]; see Hicks v City of Buffalo, 295 AD2d 880, 884[2002]). As defendants correctly contended in support of their motion, plaintiff's conviction ofpetit larceny in the underlying criminal proceeding created a presumption of the existence ofprobable cause for that criminal proceeding despite the fact that the judgment of conviction waslater reversed on appeal (see Goddard v Daly, 295 AD2d 314 [2002]). Defendants thusmet their initial burdens, and we conclude that plaintiff failed to rebut the presumption andtherefore failed to raise an issue of fact (see id.). "The presumption may be overcomeonly by evidence establishing that the . . . witnesses [in the underlying criminalproceeding] have not made a complete and full statement of facts . . . , that theyhave misrepresented or falsified [*2]evidence, that they havewithheld evidence or otherwise acted in bad faith" (Colon, 60 NY2d at 82-83), andplaintiff presented no such evidence. Plaintiff's contention that the motion with respect to themalicious prosecution cause of action was premature inasmuch as facts essential to justifyopposition to that part of the motion may exist but cannot be stated is without merit (seeNewman v Regent Contr. Corp., 31 AD3d 1133, 1134-1135 [2006]; see generallyCPLR 3212 [f]).
We further agree with defendants that the court erred in denying that part of their motion todismiss as time-barred the cause of action for "infliction of emotional distress" to the extent thatit is based upon intentional conduct. Pursuant to CPLR 215 (3), an action to recover damagesarising from an intentional tort must be commenced within one year (see Foley v MobilChem. Co., 214 AD2d 1003, 1004 [1995]). The statute of limitations begins to run on thedate of the injury (see Dana v Oak Park Marina, 230 AD2d 204, 210 [1997]), andplaintiff commenced this action nearly three years after he allegedly was injured. In addition, weconclude that the court erred in denying that part of defendants' motion for summary judgmentdismissing the cause of action for "infliction of emotional distress" to the extent that it is basedupon negligent conduct. " 'Although physical injury is no longer a necessary element of [a] causeof action for negligent infliction of emotional distress, such a cause of action generally must bepremised on conduct that unreasonably endangers the plaintiff's physical safety or causes theplaintiff to fear for his or her physical safety' " (Padilla v Verczky-Porter, 66 AD3d1479, 1481 [2009]; see Andrewski v Devine, 280 AD2d 992 [2001]). Here, defendantsestablished in support of their motion that their conduct did not endanger plaintiff or cause himto fear for his safety, and plaintiff failed to raise a triable issue of fact with respect thereto(see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
We agree with defendants that the court erred in denying that part of their motion forsummary judgment dismissing the cause of action for negligent training and supervision. " 'Sucha cause of action does not lie where, as here, the employee is acting within the scope of his or heremployment, thereby rendering the employer liable for damages caused by the employee'snegligence under the [alternative] theory of respondeat superior' " (Drisdom v Niagara FallsMem. Med. Ctr., 53 AD3d 1142, 1143 [2008]). In support of their motion, defendantssubmitted evidence establishing that defendants Michael Blair and Michael Keith Nazar wereacting within the scope of their employment with the Home Depot defendants at the timeplaintiff was detained through the time of his arrest, and plaintiff failed to raise a triable issue offact in opposition (see generally Zuckerman, 49 NY2d at 562). Finally, plaintiff'scontention that the motion with respect to the cause of action for negligent training andsupervision is premature because further discovery may reveal facts justifying denial of that partof the motion likewise is without merit (see generally CPLR 3212 [f]).Present—Hurlbutt, J.P., Centra, Fahey, Carni and Pine, JJ.