By Jarett L. Warner, ESQ*
The Supreme Court of the State of New York, County of Nassau has dismissed a lawsuit of a baseball fan, who sued the company that owns the New York Mets, Sterling Mets, L.P., and one of their security supervisors.
Plaintiff Peter DiMarinis alleged in his lawsuit that Supervisor Robert Thompson misidentified him as the fan who threw a bottle injuring Thompson.
The incident occurred at Shea Stadium on May 26, 2004. The plaintiff alleged that he observed an altercation between a group of fans and several of the Mets’ security guards, including Thompson. The plaintiff further alleged that after leaving Shea Stadium that night, Thompson accosted and physically detained him and identified him to police officers as one of the patrons who assaulted Thompson while knowing that the identification was false. The identification lead to the plaintiff’s arrest and charges of felony assault in the second degree. However, on July 28, 2004 the charges against the plaintiff were adjourned in contemplation of dismissal (“ACOD”). The plaintiff’s Verified Complaint asserted causes of action for false imprisonment, malicious prosecution, abuse of process and battery. Early in the litigation, the plaintiff voluntarily discontinued his battery cause of action.
Evidence demonstrated that: (1) the criminal action against the plaintiff resulted in an adjournment in contemplation of dismissal; (2) neither the Mets nor Thompson commenced a civil or criminal proceeding against the plaintiff but rather simply cooperated with law enforcement; (3) neither the Mets nor Thompson detained or arrested the plaintiff; and (4) neither the Mets nor Thompson played an active role in the plaintiff’s arrest, rather, Thompson only provided information to the police.
The Mets and Thompson moved for summary judgment to dismiss the plaintiff’s Verified Complaint in its entirety. In opposition to defendants’ motion, the plaintiff made an unsubstantiated contention that Thompson’s identification was done “in bad faith” to purposefully misidentify the plaintiff because he took photographs of the altercation. The Court granted defendants’ motion and dismissed all causes of action against the Mets and Thompson.
With regard to the plaintiff’s false imprisonment cause of action, the court held that there is no liability for only giving information to legal authorities who are left to use their own judgment whether an arrest should be made or criminal charges filed, citing to Chapo v. Premier Liquor Corp., 259 A.D.2d 1050, 688 N.Y.S.2d 342 (4th Dep’t 1999). Further, “[a] plaintiff must demonstrate that the defendant ‘played an active role in the prosecution, such as giving advise and encouragement or importuning the authorities to act.’” Du Chateau v. Metro-North Commuter Railroad Co., 253 A.D.2d 128, 688 N.Y.S.2d 12 (1st Dep’t 1999). The Court concluded that the evidence did not reflect any such active encouragement or importune by the Mets or Thompson to foster the plaintiff’s arrest or imprisonment by the police.
The court dismissed the plaintiff’s malicious prosecution cause of action because, among other things, in order to succeed on a malicious prosecution cause of action, the plaintiff must prove termination of the criminal proceeding in favor of the accused. In this case, the criminal proceeding against the plaintiff was adjourned in contemplation of dismissal and then dismissed. The court stated that “[t]ermination in favor of the accused is only satisfied when the case has been disposed of on the merits finding the accused innocent,” citing to Hollender v. Trump Village Cooperative, Inc., 58 N.Y.2d 420, 461 N.Y.S.2d 765 (1983). Here, the court correctly stated that “[a]n adjournment in contemplation of dismissal (ACOD) is not the equivalent of a finding of innocence, and thus, it does not support a cause of action for malicious prosecution.” Champagne v. Shop Rite Supermarkets, 203 A.D.2d 410, 610 N.Y.S.2d 559 (2d Dep’t 1994).
Finally, the Court held that the plaintiff’s abuse of process cause of action must be dismissed because by solely reporting a crime to police and giving testimony by the Mets and/or Thompson was not sufficient because they did not issue process nor use process “in a perverted manner to obtain a collateral objective.” Chapo v. Premier Liquor Corp., 259 A.D.2d 1050, 688 N.Y.S.2d 342 (4th Dep’t 1999), quoting Curiano v. Suozzi, 63 N.Y.2d 113, 480 N.Y.S.2d 466 (1984).
Peter DiMarinis v. Sterling Mets, L.P. d/b/a New York Mets and Robert Thompson; Supreme Court of the State of New York, County of Nassau, Index No.: 7503/05; 2006 NY Slip. Op. 52327U, 2006 N.Y. Misc. LEXIS 3653.
Attorneys for Record: (for plaintiff) Nicholas Otis, Esq., Law Offices of Mitchell J. Devack, PLLC, East Meadow, New York; (for defendants) Jarett L. Warner, Esq. and Carla Varriale, Esq., Havkins Rosenfeld Ritzert & Varriale, LLP, New York, New York.
Jarett L. Warner and Carla Varriale represented Sterling Mets, L.P. and Robert Thompson. Mr. Warner is an associate and Ms. Varriale is a partner at Havkins Rosenfeld Ritzert & Varriale, LLP in New York, New York. They have litigated several high profile cases for professional and minor league sports teams. They also counsel risk managers, venue owners and operators, general counsels and clients with self-insured retentions to minimize liability and to develop successful litigation strategies. If you would like a copy of the Court’s decision, they can be reached at Jarett.Warner@hrrvlaw.com , Carla.Varriale@hrrvlaw.com, or (212) 488-1598.
