CONTEH v. SEARS ROEBUCK AND CO (2007)

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about July 25, 2006, which granted defendants' motion for summary judgment insofar as to dismiss the causes of action for slander, libel and violation of the Human Rights Law, but denied the motion insofar as it sought dismissal of the causes of action for malicious prosecution and false imprisonment, unanimously modified, on the law, to grant the motion with respect to the malicious prosecution and false imprisonment causes of action, and otherwise affirmed, without costs.   The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

 Summary judgment dismissing the malicious prosecution and false imprisonment claims should have been granted since plaintiff failed to raise triable issues as to whether the manner and length of his detention by defendant retail merchant, on suspicion of theft of merchandise, were unreasonable (see General Business Law § 218).   Quite apart from the protections afforded defendants under General Business Law § 218, their actions in summoning the police, initiating a criminal complaint and cooperating with the District Attorney's Office did not, as a matter of law, constitute malicious prosecution (see Present v. Avon Prods., 253 A.D.2d 183, 189-190, 687 N.Y.S.2d 330 [1999], appeal dismissed 93 N.Y.2d 1032, 697 N.Y.S.2d 555, 719 N.E.2d 914 [1999] ).

 The defamation cause of action was properly dismissed since the complained-of statements by defendant Sears' employees in furtherance of their employer's interests were qualifiedly privileged and there was no evidence that the statements were maliciously motivated (see id. at 187-188, 687 N.Y.S.2d 330;  and see Foster v. Churchill, 87 N.Y.2d 744, 751-752, 642 N.Y.S.2d 583, 665 N.E.2d 153 [1996] ).

Also properly dismissed was the cause of action alleging violation of the Human Rights Law, since plaintiff failed to meet his initial burden of proving a prima facie case of discrimination (see Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004] ).