| Faulkner v City of Yonkers |
| 2013 NY Slip Op 02538 [105 AD3d 899] |
| April 17, 2013 |
| Appellate Division, Second Department |
| Jodi A. Faulkner, Respondent, v City of Yonkers etal., Defendants, and John Darcy, Appellant. |
—[*1] Silvestro, Mosiello & Lettera, LLP, Purchase, N.Y. (John C. Lettera of counsel), forrespondent.
In an action to recover damages for false arrest, false imprisonment, and maliciousprosecution, the defendant John Darcy appeals from an order of the Supreme Court,Westchester County (Lefkowitz, J.), entered October 27, 2011, which denied his motionfor summary judgment dismissing the complaint insofar as asserted against him.
Ordered that the order is reversed, on the law, with costs, and the motion of thedefendant John Darcy for summary judgment dismissing the complaint insofar asasserted against him is granted.
The plaintiff commenced this action against her former husband, Paul Faulkner, hisfriend John Darcy (hereinafter the appellant), and the City of Yonkers, alleging causes ofaction to recover damages for false arrest, false imprisonment, and maliciousprosecution. The complaint and bill of particulars allege that the appellant conspired withthe plaintiff's former husband to file a false report with the police, resulting in theplaintiff's arrest and criminal prosecution. The Supreme Court denied the appellant'smotion for summary judgment dismissing the complaint insofar as asserted against him.
"Although an independent cause of action for civil conspiracy is not recognized inthis State, a plaintiff may plead the existence of a conspiracy in order to connect theactions of the individual defendants with an actionable, underlying tort and establish thatthose actions were part of a common scheme" (Litras v Litras, 254 AD2d 395,396 [1998] [citation omitted]; see Alexander & Alexander of N.Y. v Fritzen, 68NY2d 968, 969 [1986]; Anesthesia Assoc. of Mount Kisco, LLP v Northern WestchesterHosp. Ctr., 59 AD3d 473, 479 [2009]; Gouldsbury v Dan's SupremeSupermarket, 154 AD2d 509, 510 [1989]; Burns Jackson Miller Summit &Spitzer v Lindner, 88 AD2d 50, 72 [1982], affd 59 NY2d 314 [1983]). "Theallegation of conspiracy carries no greater burden, but also no less, than to assertadequately common action for a common purpose by common agreement orunderstanding among a group, from which common responsibility derives"(Goldstein v Siegel, 19 AD2d 489, 493 [1963]; see Green v Davies, 182NY 499, 503-504 [1905]; MBF Clearing Corp. v Shine, 212 AD2d 478, 479[1995]; Silver v Mohasco Corp., 94 AD2d 820, 821 [1983]). Therefore, underNew York law, "[i]n order to properly plead a cause of action [*2]to recover damages for civil conspiracy, the plaintiff mustallege a cognizable tort, coupled with an agreement between the conspirators regardingthe tort, and an overt action in furtherance of the agreement" (Perez v Lopez, 97 AD3d558, 560 [2012]; see1766-68 Assoc., LP v City of New York, 91 AD3d 519, 520 [2012]; Abacus Fed. Sav. Bank v Lim,75 AD3d 472, 474 [2010]). "A bare conclusory allegation of conspiracy is usuallyheld insufficient" (Goldstein v Siegel, 19 AD2d at 493; see Halperin vLieberman, 271 App Div 878 [1946]; Supreme Specialty Mfg. Co., Inc. vDeMuth, 220 App Div 812 [1927]; cf. Kalmanash v Smith, 291 NY 142,154-155 [1943]).
The appellant met his prima facie burden of demonstrating his entitlement tojudgment as a matter of law by submitting evidence that he did not file a false report oractively importune the police to arrest the plaintiff (see DeFilippo v County ofNassau, 183 AD2d 695, 696-697 [1992]), and did not commence or continue acriminal proceeding against her (see Broughton v State of New York, 37 NY2d451, 457 [1975]). In opposition, the plaintiff failed to raise a triable issue of fact bysetting forth specific acts on the appellant's part which make out participation by him inan actionable tort. Even if the appellant did, as the plaintiff claims, advise her formerhusband to falsely tell the police that the plaintiff had hit him, the plaintiff failed tosubmit any evidence to demonstrate that the appellant and her former husband enteredinto an agreement to make a false report to the police for the purpose of causing theplaintiff's arrest, confinement, and criminal prosecution (see Perez v Lopez, 97AD3d at 560; Goldstein v Siegel, 19 AD2d at 493). Since New York does notrecognize an independent tort to recover damages for civil conspiracy (see Alexander& Alexander of N.Y. v Fritzen, 68 NY2d at 969; Romano v Romano, 2 AD3d 430, 432 [2003]), theappellant's motion for summary judgment dismissing the complaint insofar as assertedagainst him should have been granted. Dillon, J.P., Angiolillo, Dickerson and Cohen, JJ.,concur.