Summary
requiring allegations of an "actionable, underlying tort" to plead civil conspiracy
Summary of this case from Boone v. CodispotiOpinion
2013-04-17
Jodi A. FAULKNER, respondent, v. CITY OF YONKERS, et al., defendants, John Darcy, appellant.
Henderson & Brennan, White Plains, N.Y. (John T. Brennan of counsel), for appellant. Silvestro, Mosiello & Lettera, LLP, Purchase, N.Y. (John C. Lettera of counsel), for respondent.
Henderson & Brennan, White Plains, N.Y. (John T. Brennan of counsel), for appellant. Silvestro, Mosiello & Lettera, LLP, Purchase, N.Y. (John C. Lettera of counsel), for respondent.
MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and JEFFREY A. COHEN, JJ.
In an action to recover damages for false arrest, false imprisonment, and malicious prosecution, the defendant John Darcy appeals from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered October 27, 2011, which denied his motion for 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 the defendant John Darcy for summary judgment dismissing the complaint insofar as asserted against him is granted.
The plaintiff commenced this action against her former husband, Paul Faulkner,his friend John Darcy (hereinafter the appellant), and the City of Yonkers, alleging causes of action to recover damages for false arrest, false imprisonment, and malicious prosecution. The complaint and bill of particulars allege that the appellant conspired with the plaintiff's former husband to file a false report with the police, resulting in the plaintiff's arrest and criminal prosecution. The Supreme Court denied the appellant's motion for summary judgment dismissing the complaint insofar as asserted against him.
“Although an independent cause of action for civil conspiracy is not recognized in this State, a plaintiff may plead the existence of a conspiracy in order to connect the actions of the individual defendants with an actionable, underlying tort and establish that those actions were part of a common scheme” ( Litras v. Litras, 254 A.D.2d 395, 396, 681 N.Y.S.2d 545 [citation omitted]; see Alexander & Alexander of N.Y. v. Fritzen, 68 N.Y.2d 968, 969, 510 N.Y.S.2d 546, 503 N.E.2d 102;Anesthesia Assoc. of Mount Kisco, LLP v. Northern Westchester Hosp. Ctr., 59 A.D.3d 473, 479, 873 N.Y.S.2d 679;Gouldsbury v. Dan's Supreme Supermarket, 154 A.D.2d 509, 510, 546 N.Y.S.2d 379;Burns Jackson Miller Summit & Spitzer v. Lindner, 88 A.D.2d 50, 72, 452 N.Y.S.2d 80,affd.59 N.Y.2d 314, 464 N.Y.S.2d 712, 451 N.E.2d 459). “The allegation of conspiracy carries no greater burden, but also no less, than to assert adequately common action for a common purpose by common agreement or understanding among a group, from which common responsibility derives” ( Goldstein v. Siegel, 19 A.D.2d 489, 493, 244 N.Y.S.2d 378;see Green v. Davies, 182 N.Y. 499, 503–504, 75 N.E. 536;MBF Clearing Corp. v. Shine, 212 A.D.2d 478, 479, 623 N.Y.S.2d 204;Silver v. Mohasco Corp., 94 A.D.2d 820, 821, 462 N.Y.S.2d 917). Therefore, under New York law, “[i]n order to properly plead a cause of action to recover damages for civil conspiracy, the plaintiff must allege a cognizable tort, coupled with an agreement between the conspirators regarding the tort, and an overt action in furtherance of the agreement” ( Perez v. Lopez, 97 A.D.3d 558, 560, 948 N.Y.S.2d 312; see 1766–68 Assoc., LP v. City of New York, 91 A.D.3d 519, 520, 937 N.Y.S.2d 33;Abacus Fed. Sav. Bank v. Lim, 75 A.D.3d 472, 474, 905 N.Y.S.2d 585). “A bare conclusory allegation of conspiracy is usually held insufficient” ( Goldstein v. Siegel, 19 A.D.2d at 493, 244 N.Y.S.2d 378;see Halperin v. Lieberman, 271 App.Div. 878, 66 N.Y.S.2d 78;Supreme Specialty Mfg. Co., Inc. v. DeMuth, 220 App.Div. 812, 222 N.Y.S. 334;cf. Kalmanash v. Smith, 291 N.Y. 142, 154–155, 51 N.E.2d 681).
The appellant met his prima facie burden of demonstrating his entitlement to judgment as a matter of law by submitting evidence that he did not file a false report or actively importune the police to arrest the plaintiff ( see DeFilippo v. County of Nassau, 183 A.D.2d 695, 696–697, 583 N.Y.S.2d 283), and did not commence or continue a criminal proceeding against her ( see Broughton v. State of New York, 37 N.Y.2d 451, 457, 373 N.Y.S.2d 87, 335 N.E.2d 310). In opposition, the plaintiff failed to raise a triable issue of fact by setting forth specific acts on the appellant's part which make out participation by him in an actionable tort. Even if the appellant did, as the plaintiff claims, advise her former husband to falsely tell the police that the plaintiff had hit him, the plaintiff failed to submit any evidence to demonstrate that the appellant and her former husband entered into an agreement to make a false report to the police for the purpose of causing the plaintiff's arrest, confinement, and criminal prosecution ( see Perez v. Lopez, 97 A.D.3d at 560, 948 N.Y.S.2d 312;Goldstein v. Siegel, 19 A.D.2d at 493, 244 N.Y.S.2d 378). Since New York does not recognize an independent tort to recover damages for civil conspiracy ( see Alexander & Alexander of N.Y. v. Fritzen, 68 N.Y.2d at 969, 510 N.Y.S.2d 546, 503 N.E.2d 102;Romano v. Romano, 2 A.D.3d 430, 432, 767 N.Y.S.2d 841), the appellant's motion for summary judgment dismissing the complaint insofar as asserted against him should have been granted.