Opinion
December 5, 2000.
Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered on or about January 14, 2000, which, to the extent appealed from, denied defendant Niketown New York's motion for summary judgment dismissing the complaint insofar as such motion sought dismissal of plaintiff's false arrest, unlawful detention and assault causes of action, unanimously affirmed, without costs.
Jane L. Stone, for plaintiff-respondent.
Eileen B. Eglin, for defendant-appellant.
Before: Nardelli, J.P., Tom, Wallach, Andrias, Saxe, JJ.
In this action, where plaintiff, a corrections officer, was detained at Niketown and subsequently arrested for making purchases of clothing with purportedly fraudulent credit cards, summary judgment was properly denied. While, contrary to the view of the motion court, the defense set forth General Business Law § 218 may be available to Niketown under the instant circumstances (see, Wolin v. Abraham Straus, 64 Misc.2d 982), there exist factual questions upon which Niketown's invocation of the defense, i.e, whether plaintiff's detention was conducted in a reasonable manner and for a reasonable duration of time, remain unresolved (cf., Luppo v. Waldbaum, Inc., 131 A.D.2d 443), and may not be resolved in the context of adjudicating a motion for summary judgment.
Plaintiff was not collaterally estopped from litigating his causes for false arrest, unlawful detention and assault. Although an Administrative Law Judge, when recommending plaintiff's dismissal from the Department of Corrections, determined that there was a preponderance of the evidence that plaintiff unlawfully possessed two credit cards at Niketown, that determination did not address, much less resolve, the presently relevant questions respecting the manner and duration of plaintiff's detention by Niketown (cf., Ryan v. New York Tel. Co., 62 N.Y.2d 494).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.