Opinion
18991/04.
Decided May 8, 2008.
The plaintiff is represented by the law firm of Decolator, Cohen Diprisco, LLP., by Joseph L. Decolator, Esq., of counsel, the defendants the City of New York and the New York City Police Department are represented by Michael A. Cardozo, Corporation Counsel of the City of New York, by Dana Wiczyk, Esq., of counsel, the third-party defendants Pathmark of Albany Avenue and Pathmark Stores, Inc., are represented by Keal, Clerkin, Redmond, Ruan, Perry Girvan, LLP by Rhonda D. Thompson, Esq. of counsel.
In this action, the third-party defendants Pathmark Stores, Inc., s/h/a Pathmark of Albany Avenue ("Pathmark") move for summary judgment dismissing the third-party complaint. The City of New York ("City") cross moves for a summary judgment dismissing the complaint.
The case revolves around the alleged theft by a twelve (12) year old, Daryll Firmin (Firmin) of a snickers bar at Pathmark. The complaint alleges that Firmin was falsely arrested by the City. The City has interposed a third-party complaint against Pathmark asserting that if it is found liable, it seeks judgment against Pathmark. During the course of his arrest, Firmin alleges that he was injured and that City police officers used excessive force which resulted in injuries including a broken arm.
At the outset, the Court notes that Pathmark in support of its summary judgment motion relies primarily on the sworn testimony of Firmin, a twelve (12) year old infant, given at his 50-H hearing. The Court notes that he was sworn by the notary at the start of the examination.
It is axiomatic that to rely on the testimony of a minor, the court must find that he had sufficient capacity and intelligence not only to comprehend the nature and obligations of the oath, but also to recall and give a correct and truthful recitation of what had transpired. ( People v. Parks, 41 NY2d 36, [1976];, People v. Singelton, 284 AD2d 249, [1st Dep't 2001]; People v. Taylor, 244 A D2d 152 [1st Dep't 1997]; People v. Bunche, 235 AD2d 271[1st Dep't 1997]).
The Court notes that the infant was not asked any questions at the 50-H hearing to ascertain his understanding or lack thereof of the oath and the impact of his testimony on the litigation. More troubling is the statement made at the start of the 50-H by the attorney for the City, as follows:
Ms. Charles: So the record is clear. The claimant's parent is also in the room and I ask counsel to advise the witness to answer even if the information is wrong or an improper answer. She will have a chance to testify, as well.
This instruction was incorrect and confusing to say the least. In light of the failure to ascertain the infant's understanding of the oath compounded by the direction by counsel "to answer even if the information is wrong," the Court will not consider the testimony of the infant in determining this motion.
In light of this determination, the Court finds that Pathmark has not met its burden of proof on this motion for summary judgment. Moreover, Pathmark also relies on the testimony of police officer Austin which is in portions, unclear and contradictory, as to the events leading up to the arrest and the role played by Pathmark at the time of the arrest.
Accordingly, the Court finds that Pathmark has not met its burden of showing its entitlement to summary judgment and its motion is denied. There are triable issues of fact surrounding the arrest which are for a jury to decide. Washington v Community Mutual Savings Bank, 308 AD2d 444 [2d Dept 2003].)
With respect to the City's motion for summary judgement, it relies on an attorneys affirmation which cites to the testimony of police officer Austin. The Court has already determined that Austin's testimony is, in and of it self, insufficient to establish a basis for summary judgment . As such, the City's motion for summary judgment is denied except as to the third case of action for section 1983 Civil Rights violations which is dismissed as plaintiff has consented to its dismissal.
The City has also moved to dismiss and plaintiff has consented to the dismissal of the malicious prosecution cause of action. However, the parties have not identified which cause of action in the complaint alleges malicious prosecution. The Court notes that the other causes of action all sound in false arrest. No separate cause of action for malicious prosecution has been alleged, therefore, that portion of the motion is denied as moot.
The foregoing constitutes the decision and order of the Court.