| Barrett v Watkins |
| 2011 NY Slip Op 02521 [82 AD3d 1569] |
| March 31, 2011 |
| Appellate Division, Third Department |
| Robert Barrett et al., Appellants, v Michael B. Watkins etal., Respondents. |
—[*1] Kornfeld, Rew, Newman & Simeone, Suffern (Maurice J. Recchia of counsel), for MichaelB. Watkins, respondent. Law Offices of Craig Curcio, Middletown (Kevin P. Ahrenholz of counsel), for Steven M.Dubrovsky and others, respondents.
Peters, J.P. Appeal from an order of the Supreme Court (Sackett, J.), entered August 26,2010 in Sullivan County, which granted defendants' motions for summary judgment dismissingthe complaint.
On April 25, 2005, plaintiffs drove to a remote, wooded public recreation area located at thesoutheast side of the Toronto Reservoir in Sullivan County. When they attempted to leave, theydiscovered that the access road was blocked by an unoccupied truck. After approximately 15minutes, during which time plaintiffs honked the horn of their vehicle in an effort to getsomeone's attention, Wade Ebert emerged and, after speaking with plaintiffs, refused to move thetruck. Ebert then called defendant Steven M. Dubrovsky, whose company, defendant WoodstoneLakes Development, LLC, owned the land adjacent to the recreational area.[FN*]Dubrovsky arrived [*2]at the area about 40 minutes later, toldplaintiffs that they did not belong there and stated that he did not care if they had to sit there allnight. Dubrovsky then got into his vehicle with Ebert and left the area, leaving plaintiffs behind.The police, who were called earlier by both parties, eventually arrived with Dubrovsky andresolved the incident by instructing that the truck be moved. No charges were brought against anyparty as a result of this incident.
Thereafter, on May 15, 2005, plaintiffs were driving on Pine Grove Road in the Town ofBethel, Sullivan County. After passing a no trespassing sign and observing that the gate to aprivate development owned by Woodstone Lakes was closed, plaintiff Robert Barrett turned thevehicle around and left the area. Defendant Michael B. Watkins, a contractor who was workingin the private development, witnessed the incident and reported it to Dubrovsky and defendantDavid Allen. As this was not the first time that Barrett had allegedly trespassed on privateproperty owned by Woodstone Lakes and/or defendants Woodstone Toronto Development, LLCand Woodstone Crestwood Development, LLC (hereinafter collectively referred to as theWoodstone Companies), a criminal trespass complaint against Barrett was filed by Allen at therequest of Dubrovsky and on behalf of the Woodstone Companies. The subsequent criminal casewas apparently dismissed due to a lack of evidence.
Plaintiffs thereafter commenced this action alleging unlawful imprisonment against, amongothers, Dubrovsky and the Woodstone Companies based upon the April 2005 incident andmalicious prosecution against Watkins, Allen and the Woodstone Companies in connection withthe prosecution of the criminal trespass complaint resulting from the May 2005 incident.Supreme Court granted defendants' subsequent motions for summary judgment and dismissed thecomplaint, prompting this appeal.
We begin by addressing plaintiffs' claim of unlawful imprisonment. In order to establish sucha claim, plaintiffs were required to show that (1) defendants intended to confine them, (2) theywere conscious of the confinement, (3) they did not consent to the confinement and (4) theconfinement was not otherwise privileged (see Martinez v City of Schenectady, 97 NY2d78, 85 [2001]; Parvi v City of Kingston, 41 NY2d 553, 556 [1977]). Initially, we rejectthe assertion of Dubrovsky and the Woodstone Companies (hereinafter collectively referred to asthe Woodstone defendants) that plaintiffs were not actually confined. Although Dubrovsky statedduring his deposition that he believed there was another way out of the recreational area, there isno evidence that he informed plaintiffs of this, that plaintiffs were otherwise aware of anyalternate means of egress, or that any such other means was reasonable (see Talcott vNational Exhibition Co., 144 App Div 337, 338-339 [1911]; see also Restatement[Second] of Torts § 36 [confinement is complete if the means of escape is unreasonable orif a reasonable means of escape is unknown to the plaintiff]).
Furthermore, viewing the evidence in a light most favorable to plaintiffs and affording themthe benefit of all reasonable inferences (see Keenan v Munday, 79 AD3d 1415, 1418 [2010]), we find aquestion of fact as to whether the Woodstone defendants intended to confine them. TheWoodstone defendants contend that there is no evidence connecting them to Ebert and, therefore,no basis for attributing Ebert's conduct to them. However, plaintiffs testified during theirexamination before trial that Ebert informed them during the confrontation that he was employedby Dubrovsky, proceeded to call Dubrovsky to inform him of the situation and, [*3]following the conversation, continued to block the access road outof the recreation area. Furthermore, according to the constable who was called to investigate theincident, Ebert stated that he was ordered to block the road in order to prevent plaintiffs fromleaving the area. Although Dubrovsky stated during his examination before trial that Ebert wasnot employed by one of the Woodland Companies at the time of the incident and that he neverdirected Ebert to prevent plaintiffs from leaving, this creates issues of credibility which cannot beresolved on this summary judgment motion (see Campbell v Campbell, 43 AD3d 1264, 1266 [2007]; Goff vClarke, 302 AD2d 725, 727 [2003]). Moreover, even in the absence of an employmentrelationship, genuine issues of fact exist as to whether Dubrovsky actively encouraged, furtheredor ratified the confinement when, upon his arrival at the scene, he acquiesced in the continuedconfinement of plaintiffs and then proceeded to remove the individual (Ebert) who could haveended it (see Sporbert v Lenox, 251 AD2d 320 [1998]; Vanacore v Teigue, 243AD2d 706, 706 [1997]; see also Dunn v Brown, 261 AD2d 432, 433 [1999]).
Nor can we agree with the Woodstone defendants that their actions were privileged as amatter of law. Restraint is privileged only if it is "reasonable under the circumstances and in timeand manner" (Sindle v New York City Tr. Auth., 33 NY2d 293, 297 [1973]). Here, thereasonableness of plaintiffs' restraint presents a question for the jury to resolve. Accordingly,plaintiffs' unlawful imprisonment claim should not have been dismissed against the Woodstonedefendants.
Turning to the malicious prosecution cause of action, we agree with Supreme Court thatsummary judgment was warranted. To succeed on such a claim, plaintiffs were required toestablish "that a criminal proceeding was commenced, that it was terminated in favor of theaccused, that it lacked probable cause, and that the proceeding was brought out of actual malice"(Martinez v City of Schenectady, 97 NY2d at 84; see Cantalino v Danner, 96NY2d 391, 394 [2001]; Guntlow vBarbera, 76 AD3d 760, 765 [2010], appeal dismissed 15 NY3d 906 [2010]). Inorder for a civilian complainant to be considered to have initiated a criminal proceeding, "it mustbe shown that [the complainant] played an active role in the prosecution, such as giving adviceand encouragement or importuning the authorities to act" (Viza v Town of Greece, 94AD2d 965, 966 [1983], appeal dismissed 64 NY2d 776 [1985]; accord Oszustowicz v Admiral Ins.Brokerage Corp., 49 AD3d 515, 516 [2008]; Mesiti v Wegman, 307 AD2d 339,340 [2003]). Merely furnishing information to law enforcement authorities, who are then free toexercise their own judgment as to whether criminal charges should be filed, and giving testimonyat a subsequent trial are insufficient to establish liability (see Krzyzak v Schaefer, 52 AD3d 979, 980 [2008]; Quigley vCity of Auburn, 267 AD2d 978, 980 [1999]; Du Chateau v Metro-North Commuter R.R.Co., 253 AD2d 128, 131 [1999]).
Here, the record reveals that Allen signed a trespass complaint against Barrett and providedthe police with information regarding the location where the incident occurred, Watkins supplieda supporting deposition and both apparently testified at Barrett's criminal trial. According to theSullivan County District Attorney who prosecuted the trespass case, the decision to pursue theprosecution belonged to her and she did so on a good faith basis. As defendants' conduct is, as amatter of law, insufficient to impose liability for malicious prosecution, that cause of action wasproperly dismissed (see Krzyzak v Schaefer, 52 AD3d at 980-981; Quigley v City ofAuburn, 267 AD2d at 980; Du Chateau v Metro-North Commuter R.R. Co., 253AD2d at 131).
Spain, Rose, Stein and Egan Jr., JJ., concur. Ordered that the order is modified, on the law,without costs, by reversing so much thereof as granted a motion for summary judgmentdismissing the unlawful imprisonment claim against defendants Steven Dubrovsky, WoodstoneLakes Development, LLC, Woodstone Toronto Development, LLC and Woodstone CrestwoodDevelopment, LLC; said motion denied to that extent; and, as so modified, affirmed.
Footnote *: Dubrovsky was also a principalowner of defendants Woodstone Toronto Development, LLC and Woodstone CrestwoodDevelopment, LLC. Additionally, he was the managing partner and part owner of WoodstoneDevelopment, LLC, which is not a named party in this action.