KHAN v. READE

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Supreme Court, Appellate Division, First Department, New York.

Wazir KHAN, Plaintiff-Respondent, v. Duane READE, et al., Defendants-Appellants.

Decided: May 11, 2004

TOM, J.P., ELLERIN, LERNER, MARLOW, JJ. Law Office of Jody E. Markman, PLLC, New York (Aurelio C. Quinones of counsel), for appellants.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered May 7, 2003, which, to the extent appealed from as limited by the briefs, denied sub silentio the branch of defendants' motion seeking to dismiss the complaint, unanimously reversed, on the law, with costs, the branch of the motion seeking to dismiss the complaint granted and the complaint dismissed.   The Clerk is directed to enter judgment accordingly.

 The IAS court erred in failing to dismiss plaintiff's first cause of action sounding in defamation inasmuch as plaintiff failed to allege the precise words allegedly giving rise to defamation (Johnson v. Markman, 288 A.D.2d 165, 733 N.Y.S.2d 355;  Farmelant v. City of New York, 187 A.D.2d 281, 590 N.Y.S.2d 411, lv. denied 81 N.Y.2d 832, 595 N.Y.S.2d 393, 611 N.E.2d 294, cert. denied 509 U.S. 927, 113 S.Ct. 3049, 125 L.Ed.2d 734) and failed to allege in the complaint the time, place and manner of publication (Williams v. Varig Brazilian Airlines, 169 A.D.2d 434, 564 N.Y.S.2d 328, lv. denied 78 N.Y.2d 854, 573 N.Y.S.2d 467, 577 N.E.2d 1059).   Furthermore, insofar as defendants' internal employee performance report and loss prevention report were generated on January 24, 2001 and the resulting police report was filed on January 25, 2001, plaintiff's cause of action sounding in defamation, which was commenced on January 28, 2002, is time barred under CPLR 215(3).

 Likewise, the IAS court erred in failing to dismiss plaintiff's second cause of action for malicious prosecution inasmuch as plaintiff failed to demonstrate that defendants acted with the requisite malice or lacked probable cause to commence the subsequent criminal proceeding (see Brown v. Sears Roebuck, 297 A.D.2d 205, 746 N.Y.S.2d 141;  Grant v. Barnes & Noble, 284 A.D.2d 238, 726 N.Y.S.2d 543).   Plaintiff has also failed to show that the underlying criminal matter was favorably terminated in his favor (see Broughton v. State of New York, 37 N.Y.2d 451, 457, 373 N.Y.S.2d 87, 335 N.E.2d 310, cert. denied 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257).   Further, this cause of action is also time barred under CPLR 215(3).

 Similarly, plaintiff's cause of action for intentional infliction of emotional distress should have been dismissed by the IAS court.   Plaintiff failed to demonstrate that defendants' conduct was so extreme, reckless and outrageous as to cause plaintiff severe emotional distress (see Howell v. New York Post, Co., 81 N.Y.2d 115, 121-122, 596 N.Y.S.2d 350, 612 N.E.2d 699).   Under the circumstances, we do not find the defendants' conduct in filing a police report based upon a reasonable suspicion that plaintiff, an employee-at-will, was stealing store merchandise so extreme, reckless or outrageous as to state a cause of action for intentional infliction of emotional distress (see Priore v. The New York Yankees, 307 A.D.2d 67, 761 N.Y.S.2d 608, lv. denied 1 N.Y.3d 504, 775 N.Y.S.2d 781, 807 N.E.2d 894) or was sufficient to support a cause of action for negligent infliction of emotional distress.   In any event, the cause of action for intentional infliction of emotional distress is time barred under CPLR 215(3) (see Spinale v. Guest, 270 A.D.2d 39, 704 N.Y.S.2d 46).