GORDON v. MAY DEPARTMENT STORES COMPANY (1998)

In an action to recover damages for false imprisonment, the defendant May Department Stores Company appeals from an order of the Supreme Court, Queens County (Golar, J.), dated December 12, 1997, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as it is asserted against the appellant, and the action against the remaining defendant is severed.

 On March 21, 1994, the plaintiff, a part-time employee at a Lord & Taylor Department Store, was stopped as she was leaving the store and her bag was searched by store security personnel.   In order to sustain a claim for false imprisonment, the plaintiff must prove that (1) the defendant intended to confine, (2) the plaintiff was conscious of the alleged confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged (see, Parvi v. City of Kingston, 41 N.Y.2d 553, 394 N.Y.S.2d 161, 362 N.E.2d 960;  Broughton v. State of New York, 37 N.Y.2d 451, 373 N.Y.S.2d 87, 335 N.E.2d 310;  Gonzalez v. State of New York, 110 A.D.2d 810, 488 N.Y.S.2d 231).

 The plaintiff admitted at her examination before trial that she was not under the impression that she was not free to leave the store at any point during the day in question.   The affidavit which she submitted in opposition to the motion for summary judgment did not raise any genuine issue of fact in this regard (see generally, Garvin v. Rosenberg, 204 A.D.2d 388, 614 N.Y.S.2d 190).   We find no merit to the plaintiff's contention that the brief search of her bag resulted in an unreasonable detention (see, General Business Law § 218;  Malanga v. Sears, Roebuck & Co., 109 A.D.2d 1054, 487 N.Y.S.2d 194).

Accordingly, the plaintiff failed to make out a prima facie claim of false imprisonment and the appellant is entitled to dismissal of the complaint insofar as asserted against it (see, Elson v. Consolidated Edison Co. of N.Y., 226 A.D.2d 288, 641 N.Y.S.2d 294).

MEMORANDUM BY THE COURT.