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July 2011

New York Team Prevails on Summary Judgment in Malicious Prosecution Case

New York Managing Partner Mercedes Colwin and Senior Counsel Robert Modica prevailed on a motion for summary judgment on behalf of their client, Company ABC, in a matter venued in the New York Supreme Court, Bronx County. In this action, Plaintiff, a former employee of Company ABC, and her husband, asserted five causes of action: (1) Malicious prosecution; (2) False Imprisonment; (3) Battery; (4) Assault; and, (5) Loss of Consortium.

Company ABC, which has been in operation for more than 50 years, owns and operates over twenty five (25) retail check cashing stores; provides corporate teller services for many Fortune 500 companies and an armored truck fleet for on-site payroll distribution and armored car services. In this regard, prior to the filing of the complaint, Plaintiff was employed by Company ABC at one of its corporate locations, and, as such, had access to, and sold American Express Travelers checks. However, after several unexplained/unauthorized absences, she was asked to resign. Shortly thereafter, Company ABC was notified by American Express that over one-hundred (100) travelers checks totaling approximately $20,000 had been cashed at one of its locations without ever having first been sold to the public. As a result, a nearly three week internal investigation was conducted, and revealed that given her access to the same, it was more than likely that Plaintiff misappropriated the subject travelers checks. Accordingly, Company ABC contacted the Financial Crimes Unit of the New York City Police Department, who in turn, conducted their own investigation. Following the conclusion of this investigation, a criminal complaint was filed against the plaintiff. However, for reasons unknown to Company ABC, the charges against Plaintiff were dismissed on "speedy trial" grounds.

At the conclusion of discovery, a motion for summary judgment was filed on behalf of Company ABC. In granting this motion, the court first denied Plaintiffs' claim for malicious prosecution because the plaintiffs failed to provide sufficient evidence to support their claim. Next, the court denied Plaintiffs' claim for false arrest, and accordingly denied Plaintiffs' cross-motion for summary judgment of the same claim. The court ruled that the Plaintiffs' failed to proffer evidence that Company ABC actively or aggressively pursued the investigation against the Plaintiff after the police were contacted.

Further, the court denied Plaintiffs' assault and battery claims because they failed to provide support for their claim that Company ABC was vicariously liable for the police officers' conduct. Finally, the court ruled that Plaintiff's husband failed to prove his claim for loss of consortium upon its review of an email exchange between the Plaintiffs which was uncovered during the course of discovery. The email evidenced that prior to her arrest, the Plaintiffs discussed ending their marriage, so the court determined that the loss of consortium claim lacked merit.

Mercedes Colwin
Robert Modica



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