Sada v. Kohl's Department Stores, Inc.

Appellate Division of the Supreme Court of New York

Sada v. Kohl's Department Stores, Inc.

79 A.D.3d 1121, 913 N.Y.S.2d 567

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 28, 2010

StatusPublished

Cited by3 cases

This text of 79 A.D.3d 1121 (Sada v. Kohl's Department Stores, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sada v. Kohl's Department Stores, Inc., 79 A.D.3d 1121, 913 N.Y.S.2d 567 (N.Y. Ct. App. 2010).

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Opinion

In an action to recover damages for defamation, false imprisonment, malicious prosecution, and negligence, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Battaglia, J.), dated January 7, 2010, as denied its motion for summary judgment dismissing the complaint and granted that branch of the plaintiffs cross motion which was to impose sanctions based on spoliation of evidence.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied the defendant’s motion [1122]*1122for summary judgment dismissing the complaint based upon the defense afforded to merchants under General Business Law § 218. Since the defendant failed to eliminate triable issues of fact as to whether it had reasonable grounds to detain the plaintiff, it failed to demonstrate its prima facie entitlement to judgment as a matter of law dismissing the plaintiffs causes of action sounding in false imprisonment and defamation (see General Business Law § 218). Contrary to the defendant’s contention, General Business Law § 218 does not provide an affirmative defense to causes of action sounding in malicious prosecution or negligent hiring, retention, and supervision (see General Business Law § 218; Conteh v Sears, Roebuck & Co., 38 AD3d 314 [2007]; Richardson v New York Univ., 202 AD2d 295 [1994]). Accordingly, the defendant’s motion was properly denied regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Moreover, the determination of whether to impose sanctions for spoliation of evidence is a matter within the broad discretion of the court (see Denoyelles v Gallagher, 40 AD3d 1027, 1027 [2007]). Here, the sanction imposed for spoliation of the surveillance videotape of the incident involving the plaintiff was a provident exercise of the Supreme Court’s discretion. Florio, J.P., Balkin, Leventhal and Austin, JJ., concur. [Prior Case History: 26 Misc 3d 1207(A), 2010 NY Slip Op 50007(U).]

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In an action to recover damages for defamation, false imprisonment, malicious prosecution, and negligence, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Battaglia, J.), dated January 7, 2010, as denied its motion for summary judgment dismissing the complaint and granted that branch of the plaintiffs cross motion which was to impose sanctions based on spoliation of evidence.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied the defendant’s motion [1122]*1122for summary judgment dismissing the complaint based upon the defense afforded to merchants under General Business Law § 218. Since the defendant failed to eliminate triable issues of fact as to whether it had reasonable grounds to detain the plaintiff, it failed to demonstrate its prima facie entitlement to judgment as a matter of law dismissing the plaintiffs causes of action sounding in false imprisonment and defamation (see General Business Law § 218). Contrary to the defendant’s contention, General Business Law § 218 does not provide an affirmative defense to causes of action sounding in malicious prosecution or negligent hiring, retention, and supervision (see General Business Law § 218; Conteh v Sears, Roebuck & Co., 38 AD3d 314 [2007]; Richardson v New York Univ., 202 AD2d 295 [1994]). Accordingly, the defendant’s motion was properly denied regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Moreover, the determination of whether to impose sanctions for spoliation of evidence is a matter within the broad discretion of the court (see Denoyelles v Gallagher, 40 AD3d 1027, 1027 [2007]). Here, the sanction imposed for spoliation of the surveillance videotape of the incident involving the plaintiff was a provident exercise of the Supreme Court’s discretion. Florio, J.P., Balkin, Leventhal and Austin, JJ., concur. [Prior Case History: 26 Misc 3d 1207(A), 2010 NY Slip Op 50007(U).]

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Bluebook (online)

79 A.D.3d 1121, 913 N.Y.S.2d 567, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sada-v-kohls-department-stores-inc-nyappdiv-2010.

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