HUI MIN LI v. Hong Kong Supermarket, Inc., Defendant–Appellant.

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HUI MIN LI, Plaintiff–Respondent, v. The CITY OF NEW YORK, et al., Defendants, Hong Kong Supermarket, Inc., Defendant–Appellant.

Decided: November 22, 2011

SAXE, J.P., SWEENY, RICHTER, MANZANET–DANIELS, JJ. Conway, Farrell, Curtin & Kelly P.C., New York (Jonathan T. Uejio of counsel), for appellant. Law Office of Ryan S. Goldstein, P.L.L.C., Bronx (Ryan S. Goldstein of counsel), for respondent.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered January 31, 2011, which, insofar as appealed from, denied defendant Hong Kong Supermarket, Inc.'s motion for summary judgment dismissing the complaint as against it, unanimously modified, on the law, to grant the motion as to the cause of action for violation of civil rights pursuant to 42 USC § 1983, and otherwise affirmed, without costs.

Defendant failed to demonstrate conclusively that plaintiff's cause of action for false imprisonment as against it is without merit (see Martinez v. City of Schenectady, 97 N.Y.2d 78, 85 [2001] ). The conflicting testimony presents issues of fact whether plaintiff was detained or remained voluntarily in the store after defendant accused her of stealing rice cakes and, if she was detained, whether the detention was conducted in a reasonable manner (see General Business Law § 218).

To the extent plaintiff's cause of action for violation of civil rights pursuant to 42 USC § 1983 is asserted against this defendant, it should be dismissed because the record is bereft of any indication that defendant was acting under color of state law (see Rodriguez v. City of New York, 87 AD3d 867 [2011] ).

We have considered defendant's remaining contentions and find them unavailing.