Preview
INDEX NO. 533822/2023
FILED: KINGS COUNTY CLERK 01/02/2024 12:54 PM
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/02/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
IFTIKHAR DIN, Index No. 533822/2023
Plaintiff,
-against-
BOSTON SCIENTIFIC CORPORATION, et al.,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF PRE-ANSWER MOTION TO DISMISS
THE COMPLAINT, AND CROSS-CLAIMS FOR FAILURE TO STATE A CAUSE OF
ACTION UNDER CPLR § 3211(a)(7) AND FAILURE TO PLEAD DEFAMATION WITH
PARTICULRITY PURSUANT TO CPLR § 3016(a) ON BEHALF OF
BOSTON SCIENTIFIC CORPORATION, ABRAHAM QUINONES,
SUNIL TRIPATHI, AND JASON CHAPMAN
Tanenbaum Keale LLP
Dennis E. Vega, Esq.
Three Gateway Center
Suite 1301
Newark, New Jersey 07102
973-242-0002
dvega@tktrial.com
Attorneys for Defendants
Boston Scientific Corporation,
Abraham Quinones,
Sunil Tripathi and
Jason Chapman
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TABLE OF CONTENTS
TABLE OF AUTHORITIES
PRELIMINARY STATEMENT
STATEMENT OF PLAINTIFF’S ALLEGATIONS
LEGAL STANDARD
ARGUMENT
I PLAINTIFF’S ALLEGATIONS OF CONSPIRACY DO NOT EXCUSE THE
FAILURE TO PROPERLY PLEAD UNDERLYING TORTS ...
IL. PLAINTIFF’S ENTIRE COMPLAINT FAILS TO STATE A CAUSE OF
ACTION AGAINST BSC, QUINONES, TRIPATHI, AND CHAPMAN
FIRST CLAIM
NO CAUSE OF ACTION FOR CIVIL ASSAULT AND BATTERYAGAINST BSC,
QUINONES, TRIPATHI, AND CHAPMAN EXISTS...
SECOND CLAIM
NO CAUSE OF ACTION FOR FALSE IMPRISONMENT AGAINST BSC, QUINONES,
TRIPATHI, AND CHAPMAN
A No Intent to Confine Plaintiff, Consciousness, or Lack of Consent.
A Plaintiff Does Not Plead BSC, Quinones, Tripathi, or Chapman Coopted NYPD
or Lack of Probable Cause
THIRD CLAIM
NO CAUSE OF ACTION FOR MALICIOUS PROSECUTION AGAINST BSC,
QUINONES, TRIPATHI, AND CHAPMAN EXISTS
A Plaintiff Did Not Plead That BSC, Quinones, Tripathi, or Chapman
Commenced a Proceeding
B Probable Cause Exists 11
C. Plaintiff Did Not Plead Actual Malice 12
FOURTH CLAIM 12
NO CAUSE OF ACTION FOR NEGLIGENCE; NEGLIGENT
ii
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HIRING/TRAINING/RETENTION AGAINST BSC, QUINONES, TRIPATHI, AND
CHAPMAN EXISTS 12
A. Negligence 12
B Negligent Hiring/Training/Retention 13
FIFTH CLAIM 16
NO CAUSE OF ACTION FORINTENTIONAL INFLICITON OF EMOTIONAL DISTRESS
(“ITED”) OR NEGLIGENT INFLCITION OF EMOTIONAL DISTRESS
(“NIED”)AGAINST BSC, QUINONES, TRIPATHI, AND CHAPMAN EXISTS 16
1 Plaintiff Does Not Plead TED. ............... cece esses eeeseseeseseseeseseeseseseseseesesesneeeeees 16
2 No Extreme and Outrageous Conduct. 17
3. No Intent or Causation 17
4. Plaintiff Does Not Plead “Severe” Emotional Distress. 18
Plaintiff Does Not Plead NIED Against BSC, Quinones, Tripathi, and Chapman
18
No Duty of Care Owed to Plaintiff. 18
No Direct Mental Injury. 0.0.0.0. ccc ececceeseseseseeeseseseeescseseseseeescseseseseseeeeesseeeseeaees 18
No Guarantee of Genuineness of Mental Injury 19
B In the Alternative, Duplication 19
SIXTH CLAIM 20
NO CAUSE OF ACTION UNDER NYC ADMIN. CODE § 8-802 AGAINST BSC,
QUINONES, TRIPATHI, AND CHAPMAN EXISTS 20
SEVENTH CLAIM 21
NO CAUSE OF ACTION FOR DEFAMATION AGAINST BSC, QUINONES, TRIPATHI,
AND CHAPMAN EXISTS 21
A Plaintiff Does Not Plead The Specific Defamatory Words 21
B Plaintiff Does Not Plead Time, Date, Place or Manner. 22
EIGHTH CLAIM. 22
NO CAUSE OF ACTION FOR MALICIOUS ABUSE OF PROCESS AGAINST BSC,
iii
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QUINONES, TRIPATHI, AND CHAPMAN EXISTS 22
NINTH CLAIM 23
NO CAUSE OF ACTION FOR FAILURE TO INTERVENE AGAINST BSC, QUINONES,
TRIPATHI, AND CHAPMAN EXISTS 23
TENTH CLAIM 23
PUNTIVE DAMAGES AND ATTORNEY’S FEES ARE NOT CAUSES OF ACTION AND
SHOULD BE DISMISSED 23
CONCLUSION 24
WORD COUNT CERTIFICATION 25
iv
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TABLE OF AUTHORITIES
Cases
Abacus Fed. Sav. Bank v. Lim,
75 A.D.3d 472, 474 (1st Dept 2010)
Alexander & Alexander, Inc. v. Fritzen,
68 N.Y.2d 968, 969 (1986)
Amon v. Drohan, 2020 N.Y. Slip Op
30299[U], *2 (Sup. Ct., NY County 2020) 10
Arvanitakis v Lester,
145 AD3d 650, 651 (2d Dep’t 2016) 20
Berrios v. Our Lady of Mercy Med. Ctr.,
20 A.D.3d 361, 363 (1st Dep’t 2005) 16
Blanco v. Polanco,
116 A.D.3d 892, 896 (2d Dept 2014) 2,5
Boliak v Reilly, 2017 N.Y. Slip Op.
32010[U], *8 (Sup Ct, N.Y. County 2017) 11
Brandy B. v Eden Cent. School Dist.
15 NY3d 297, 302 [2010] 14
Brennan v Commonwealth Bank & Trust Co.,
65 AD2d 636, 409 NYS2d 266 (3d Dept 1978). 15
Brown v Sears Roebuck and Co.,
297 A.D.2d 205, 212 (1st Dep’t 2002) 16
Cerilli v. Kezis,
16 A.D.3d 363, 364 (2d Dept 2005)
Chanko v. American Broadcasting Cos. Inc.,
27 N.Y.3d 46, 56 (2016) 16
Charkhy v. Altman,
252 A.D.2d 413, 414 (Ist Dep’t 1998)
CPLR § 3211(a)(7) 1,4
Cresser v. Am. Tobacco Co.,
174 Misc 2d 1, 7, n 4 (Sup. Ct., Kings County 1997)
Vv
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Curiano vy. Suozzi,
63 N.Y.2d 113, 116 (1984) 22
De Lourdes Torres v Jones,
26 N.Y.3d 742, 760 (2016) 9,12
Farrell v Allianz Life Ins. Co. of N. Am.,
2011 NY Slip Op 30962[U], *4 (Sup. Ct., Nassau County 2011) 18
Fiesel v. Nanuet Properties Corp.,
125 A.D.2d 292, 508 N.Y.S.2d 576 (2d Dept. 1986) 23
Fischetti v City of NY,
199 A.D.3d 891, 892 (2d Dep’t 2021)
Fuller v. Fam. Servs. of Westchester, Inc.,
209 A.D.3d 983, 983, 177 N.Y.S.3d 141, 142 (2022) 15
Goldman vy. Citicore I, LLC,
149 A.D.3d 1042, 1045 (2d Dep’t 2017) 22
Haladan Mgt. Co. v Estate of Elizabeth Ann Davies,
48 Mise 3d 1227 (Civ. Ct., Kings County 2015)
Hauser v. Bartow,
273 N.Y. 370, 374 (1937) 22
Hazelwood v. City of NY,
2016 N.Y. Misc. LEXIS 19094, at *5 (Sup Ct., Queens County Aug. 15, 2016, No.
705848/2016) 19
Kaba v. Zara USA, Inc.,
2023 N.Y. Slip. Op. 30930[U], *4 (Sup. Ct., N.Y. County 2023)
Kenneth R. v. Roman Catholic Diocese of Brooklyn,
229 A.D.2d 159, 161, 654 N.Y.S.2d 791) 14
Kilkenny v. Law Office of Cushner & Garvey, LLP,
76 A.D.3d 512 (2d Dep’t 2010) 21, 22
Leon v. Martinez,
84 N.Y.2d 83, 87-88 (1994)
Lynch Dey. Assoc., Inc. v Johnson,
219 A.D.3d 1328, 1331 (2d Dept 2023) 16
Manas v. VMS Assoc., LLC,
53 AD3d 451, 863 N.Y.S.2d 4 (1st Dept 2008) 21
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Marks v. Marks,
113 A.D.2d 744, 745 (2d Dep’t 1985) 22
Matthaus v. Hadjedj,
148 A.D.3d 425, 425-426 (1st Dep’t 2017) 16
Merchants Mut. Ins. Co. v. Quality Signs of Middletown,
110 A.D.3d 1042, 1043 (2d Dep’t 2013) 12
Mondello v Mondello,
161 AD2d 690, 691 (2d Dep’t 1990) 12
Moore Charitable Found. v PJTPartners, Inc.,
2023 NY Slip Op 03185 (2023) (citing Restatement [Second] ofTorts § 317, Comment b and
Restatement [Second] of Agency § 219) 13, 14, 15
Morgan v. Nassau County,
2009 U.S. Dist. LEXIS 79180, at *55-56 (E.D.N.Y. Sep. 1, 2009, No. 03-CV-5109 (SLT)
(WDW))
Nardelli v Stamberg,
44 NY2d 500, 503 [1978] 12
Navarro v. Federal Paper Bd. Co.,
185 A.D.2d 590, 593-94 (3 Dep’t 1992) 16
Nisari v. Ramjohn,
85 A.D.3d 987 (2d Dep't 2011)
Owen v.Leventritt,
174 A.D.2d 471, 472 (1st Dep't 1991) 17
Park v New York Cent. & H.R.R. Co.,
155 NY 215, 49 NE 674 (1898) 15
Perez v Comparato, 2023 NY Slip Op
31397[U], *3 (Sup. Ct., N.Y. County 2023) 23
Petkewicz,
137 A.D.3d at 990 17
Petrychenko v. Solovey,
99 A.D.3d 777, 779 (2d Dept 2012)
Pietroforte v Ctr. for Nursing & Rehabilitation,
2022 N.Y. Misc. LEXIS 17544, at *48 (Sup. Ct., N.Y. County May 27, 2022, No.
805149/2014) 10
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Pincus v. Wells,
35 A.D.3d 569 (2d Dep't 2006)
Porta v. Alacra, Inc.,
142 A.D.3d 851, 853 (1st Dept 2016) 23
Primeau v. Town of Amherst,
303 A.D.2d 1035 (4th Dept.2003)) 14
Rau v. Borenkoff,
262 A.D.2d 388, 389 (2d Dep’t 1999)
Reaves v. New York City Dep't of Educ.,
218 A.D.3d 697, 193 N.Y.S.3d 216, 217 (2"4 Dep’t 2023) 14
Rendely v. Town of Huntington,
2006 U.S. Dist. LEXIS 97203, at *21-22 (E.D.N.Y. Aug. 29, 2006) 23
Residential Bd. of Mgrs. of the Toren Condominium v BFC Partners,
2014 NY Slip Op 33648[U], *5 (Sup. Ct., N.Y. County 2014)
S.C. v. New York City Dept. of Educ.,
97 A.D.3d 518, 519-520, 949 N.Y.S.2d 71 14
Shaw v. City of NY,
139 A.D.3d 698, 699 (2d Dep’t 2016) 11
Shaw v. Club Mgrs. Assn. of Am., Inc.,
2010 NY Slip Op 3051 1[U], *10 (Sup. Ct., Nassau County 2010)
Shor v. Touch-N-Go Farms, Inc.,
89 A.D.3d 830, 831, 933 N.Y.S.2d 686 14
Simkin v. Blank,
19 N.Y.3d 46, 52, 945 N.Y.S.2d 222, 968 N.E.2d 459 15
Skinner v Govt. Emples. Ins. Co.,
196 AD2d 494, 494 (2d Dept 1993) 21
Smiley v. N. Gen. Hosp.,
59 A.D.3d 179, 180, 872 N.Y.S.2d 456, 457 (1 Dep’t 2009) 13
Smith-Henze v. Edwin Gould Servs. for Child. & Fams., Officers & Emps.,
No. 06 CIV. 3049 LBS DCF, 2006 WL 3771092, at *6 (S.D.N.Y. Dec. 21, 2006) 14
Taggart v Costabile,
131 A.D.3d 243, 255-56 (2d Dep’t 2015) 18, 19
Trec v. Cazares,
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185 A.D.3d 866, 868 (2d Dep’t 2020) 7,8
Trott v. Merit Dept. Store,
106 A.D.2d 158, 159, 484 N.Y.S.2d 827 [1985] 13
Tueme v. Lezama,
217 A.D.3d 715, 716-717 (2d Dep’t 2023) 7,9, 10
W.G. v N. Am. Old R.C. Church,
2022 NY Slip Op 34456[U], *12 (Sup. Ct., Kings County 2022)... 19
Waldhof v Derek K. Miller Enters.,
2022 N.Y. Misc. LEXIS 4585, at *4-5 (Sup. Ct., Suffolk County July 31, 2022, No.
5053/2015) 10
Williams v Williams,
28 N.Y.2d 592 (1969) 22
Williston v. Jack Resnick & Sons, Inc.,
177 A.D.3d 822, 823 (2d Dep’t 2019) 7, 8,9,10
Wrase v. Bosco,
271 A.D.2d 440, 706 N.Y.S.2d 434 [2000]) 13
Zapata v. Tufenkjian,
123 A.D.3d 814, 815 (2d Dep’t 2014) 16
Other Authorities
185 A.D.3d at 868..
20 N.Y. Jur. 2d, Conspiracy-Civil Aspects .......ccecceceeseeesesesescsesesesesescseseseseseseseseeeseeeseeeseeeeeeneeees 5
https://dictionary.cambridge.org/dictionary/english/relinquish
NYC Administrative Code 8-803(a) 23
NYC. Admin. Code § 8-802 20, 23
Rules
CPLR § 3016(a) 1,21
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Defendants Boston Scientific Corporation (“BSC”), Abraham Quinones
(“Quinones”), Sunil Tripathi (“Tripathi”), and Jason Chapman (“Chapman”) (collectively,
where appropriate, the “BSC Defendants”) through their counsel, Tanenbaum Keale LLP,
submit this Memorandum of Law in support oftheir pre-answer motion to dismiss Plaintiff,
Iftikhar Din’s (“Plaintiff”), Verified Complaint (“Complaint”) pursuant to CPLR §
3211(a)(7) because it (a) fails to state a cause of action against BSC, Quinones, Tripathi, and
Chapman, and (b) it fails to plead defamation against BSC, Quinones, Tripathi, and Chapman
with particularity as required by CPLR § 3016(a).
PRELIMINARY STATEMENT
Plaintiff was arrested by Defendant officers of the New York City Police Department
(“NYPD”), following an incident that Plaintiff alleges “at least” Defendants Tina Napolitano
(“Napolitano”), Quinones, Sunil Pumila (“Pumila”) and Monet Allen (“Allen”)! arrived at Dr.
Salman Haq’s (“Haq”) office to secure Haq’s equipment the day after Haq’s passing. The
NYPD officers found Plaintiff in possession? of Haq’s equipment, and arrested Plaintiff.
On November 16, 2023, Plaintiff filed a sweeping Complaint alleging ten causes of
action, naming nine Defendants, and Jane and John Doe 1-10. The complaint is completely
unclear as to which claim(s) and allegation(s) apply to which Defendants.
' Plaintiff alleges Napolitano is Haq’s part-time secretary, and Allen and Pumila are police officer
employed by NYPD. (Compl., ff 14, 17). Plaintiff does not allege how NYPD arrived at the
scene.
? Plaintiff pleads Haq was a “tenant” and admits he took “temporary possession” of the
equipment. (Compl. J 18, 25). He does not plead he spoke with Haq’s estate. A lease for a
fixed term does not terminate upon the death of the tenant. It becomes the property of the
tenant’s estate. Haladan Mgt. Co. v Estate of Elizabeth Ann Davies, 48 Misc 3d 1227 (Civ. Ct.,
Kings County 2015).
1
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Plaintiff’s action jumbles bare allegations, parroted elements, and legal conclusions
that fail to state claims against any BSC Defendant. Plaintiff shrouds its bare bones
Complaint with group pleadings and declarations of unsupported conspiracy.* Plaintiff fails
to plead that any BSC Defendant, all civilians, coopted the NYPD, demanded arrest, or even
made a specific statement to an arresting officer prior to his arrest. Plaintiff fails to plead
that any BSC Defendant knowingly provided false information to police or prosecutors to
initiate or continue a prosecution. There are no facts pled that NYPD didn’t act on its own
after finding Plaintiff in unlawful possession of Haq’s property. The Complaint fails to set
forth the particular words comprising Plaintiff's defamation claim and who uttered the
words. The Complaint fails to plead the elements of the alleged causes of action and must be
dismissed against the BSC Defendants for failure to state a claim.
STATEMENT OF PLAINTIFF’S ALLEGATIONS
On November 18, 2022, Plaintiff, a medical doctor, was at his office at 405 5th Avenue,
Brooklyn. (Compl. §j 17). Plaintiff alleges he received a call from Napolitano, “part-time
secretary to plaintiff's tenant . . . [ Haq], who had died suddenly the day before.” (/d. at § 18).
Napolitano “informed plaintiff that she would be coming to his office to retrieve all of Dr. Haq’s
equipment.” (/d. at § 19). Plaintiff alleges he “informed Napolitano that she did not own Dr.
Haq’s computers and other equipment,” that they contained HIPAA sensitive material, and that
he “needed to speak with Dr. Haq’s family in Texas” before it could be released. (Jd. at § 20).
3 Plaintiff's conclusory claim that civilian Defendants Napolitano, BSC, Quinones, and Tripathi
conspired with NYPD to falsely accuse plaintiff of larceny and criminal possession are
insufficient to plead conspiracy. Blanco v. Polanco, 116 A.D.3d 892, 896 (2d Dept 2014).
2
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Later that day, Napolitano, and “at least” Quinones, Pumila and Allen arrived at
plaintiff's office and allegedly “aggressively demanded the plaintiff relinquish the equipment. ”
(d. at § 21).* Plaintiff alleges that BSC employs Defendants Quinones, Tripathi and Chapman,
(d. at § 18), and that Allen, Pumila, and Franzt Souffrant (“Souffrant”) are NYPD police
officers. (/d. at 44 13-14).
Plaintiff alleges, “upon information and belief” that Napolitano, BSC, Quinones, Tripathi
and Campell [sic] sought Haq 2g
Ss ‘equipment to improperly obtain and access information,
including protected health information,” (/d. at § 23), and in conclusory fashion, alleges
Napolitano, BSC, Quinoes, Tripathi and Campbell [sic] “conspired” with NYPD employees
Allen, Pumilla and Souffrant to “falsely accuse plaintiffof larceny and criminal possession of
stolen property...” (Id. at § 24).
Plaintiff further alleges in conclusory fashion that “defendants caused him to be
handcuffed and arrested in public,” (/d. at § 25), that “Defendants Pumilia and Allen subjected
him to assault and battery” (/d. at { 26), defamed him, (/d. at § 27), and that he was held
overnight, issued a desk appearance ticket [“DAT”] and charges were ultimately dismissed. (/d.
at J{ 27, 30 and 31). Plaintiff alleges in conclusory fashion that all “Defendants provided false
information to the prosecutors ... that Napolitano was plaintiff's office manager and that there
was reason to believe that plaintiff committed theft and possession of stolen property” and
“Defendants were aware that none of the allegations were true.” (/d. at § 24 and 28).
4 By using the word “relinquish,” Plaintiff admits he took possession of Dr. Haq’s equipment,
to which he had no right. Relinquish means “to give up something such as a responsibility or
claim” https://dictionary.cambridge.org/dictionary/english/relinquish
3
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Plaintiff's conclusory allegations lack facts necessary to afford Plaintiffan inference of
truth and the Complaint omits elements necessary to plead claims against the BSC Defendants.
Therefore, the Complaint against the BSC Defendants should be dismissed.
LEGAL STANDARD
On a CPLR § 3211 motion to dismiss, the court accepts factual allegations in the
complaint as true and makes all reasonable inferences in the non-moving party’s favor. Leon v.
Martinez, 84 N.Y 2d 83, 87-88 (1994); Nisari v. Ramjohn, 85 A.D.3d 987 (2d Dep't 2011).
However, this premise is not absolute. Bare legal conclusions or factual claims that are
either inherently incredible or flatly contradicted by documentary evidence are not presumed to
be true, nor are they accorded favorable inferences. Nisari, 85 A.D.3d 987. If a party's
allegations fail to state any cognizable legal theory, dismissal is appropriate. Pincus v. Wells, 35
A.D.3d 569 (2d Dep't 2006). Moreover, allegations “unsupported by any facts, [that] do nothing
more than parrot the elements” are insufficient. Residential Bd. of Mgrs. of the Toren
Condominium v BFC Partners, 2014 NY Slip Op 33648[U], *5 (Sup. Ct., N.Y. County 2014);
Rau v. Borenkoff, 262 A.D.2d 388, 389 (2d Dep’t 1999) (conclusory allegations unsupported by
facts are not deemed true, and absent facts there are no inferences to be drawn).
ARGUMENT
I PLAINTIFF’S ALLEGATIONS OF CONSPIRACY DO NOT EXCUSE
THE FAILURE TO PROPERLY PLEAD UNDERLYING TORTS
Initially, this Court should review the Complaint skeptically. Plaintiff alleges conspiracy
to cloak his inability to plead the tort claims. A “mere conspiracy to commit a [tort] is never of
itself a cause of action.” Alexander & Alexander, Inc. v. Fritzen, 68 N.Y.2d 968, 969 (1986). To
plead conspiracy, Plaintiff must allege (1) an agreement to participate in an unlawful act, (2)
4
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injury caused by an unlawful overt act performed by one of the parties to the agreement; (3)
which overt act was done pursuant to and in furtherance of the common scheme. Cresser v. Am.
Tobacco Co., 174 Misc 2d 1, 7, n 4 (Sup. Ct., Kings County 1997).
Bare conclusory allegations of conspiracy are insufficient. See Blanco v Polanco, 116
AD34d 892, 896 (2d Dept 2014); Shaw v. Club Mgrs. Assn. of Am., Inc.,2010 NY Slip Op
30511[U], *10 (Sup. Ct., Nassau County 2010) (“plaintiffs must do more than assert a bare
bones allegation that a conspiracy exists.”). One must allege facts sufficient to constitute an
agreement or common understanding, a joint intent to tortiously injure. 20 N.Y. Jur. 2d,
Conspiracy-Civil Aspects 19; Abacus Fed. Sav. Bank v. Lim, 75 A.D.3d 472, 474 (1st Dept
2010) (conspiracy requires an “intentional participation in the furtherance of a plan”).
Here, the allegations of conspiracy are contain no factual allegations detailing specifically
how any BSC Defendant agreed with anyone to participate in an unlawful act, commit a tort,
injure Plaintiff, or that any of their acts were in furtherance of an agreement to arrest or prosecute
Plaintiff. Merely stating that the BSC Defendants “conspired” with NYPD employees and others
“to falsely accuse plaintiffof larceny and criminal possession of stolen property,” and “imprison
him” (Compl. ff 24, 38), is the textbook unsupported “bare bones allegation that a conspiracy
exists,” Shaw, supra. These allegations are not entitled to an inference of truth, are defective, and
Plaintiff cannot rely on conspiracy to link the BSC Defendants to any wrongdoing.
Il. PLAINTIFF’S ENTIRE COMPLAINT FAILS TO STATE A CAUSE OF
ACTION AGAINST BSC, QUINONES, TRIPATHI, AND CHAPMAN
Each alleged claim in Plaintiff's complaint fails to state a cause of action against the BSC
Defendants.
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FIRST CLAIM
NO CAUSE OF ACTION FOR CIVIL ASSAULT AND BATTERYAGAINST BSC,
QUINONES, TRIPATHI, AND CHAPMAN EXISTS
Plaintiff fails to plead assault or battery against the BSC Defendants. Plaintiff alleges that
in the “course of seizing and arresting plaintiff, defendants including Pumila and Allen subjected
him to assault and battery,” (Compl., §/ 26), and by that conduct, all “defendants are liable” (/d. {
34). To plead assault, plaintiff must allege that defendants intentionally placed him in fear of
imminent harmful or offensive contact. Charkhy v. Altman, 252 A.D.2d 413, 414 (1st Dep’t
1998). The elements of civil battery are bodily contact, made with intent, and which is offensive
in nature. Cerilli v. Kezis, 16 A.D.3d 363, 364 (2d Dept 2005). Plaintiff sets forth no facts
specific to the BSC Defendants’ conduct to state a claim for assault or battery.
Plaintiff doesn’t allege that the BSC Defendants intentionally placed Plaintiff in fear of
imminent harmful or offensive contact, or that they were in a position to do so. Similarly,
Plaintiff fails to allege that the BSC Defendants intended to or made contact with Plaintiff, let
alone that it was offensive. This warrants dismissal of the assault and battery claims as a matter
of law. Further, if Plaintiff attempts to ground his claim on allegedly being handcuffed by police,
(Compl. § 25), and attempts to transfer intent to the BSC Defendants, this too fails. See Kaba v.
Zara USA, Inc., 2023 N.Y. Slip. Op. 30930[U], *4 (Sup. Ct., N.Y. County 2023) (dismissing
assault and battery as “the complaint d[id] not contain any facts that would indicate the police
officers were being pressured or...induced...to effectuate plaintiffs’ detainment...In the absence
of allegations that Zara coopted the officers...liability for assault and battery cannot lie...”)
Like Kaba, there are no allegations any BSC Defendant spoke to the police or coopted
the police for purposes of arresting or handcuffing Plaintiff. As such, any assault and battery
claims lodged against any BSC Defendant, must be dismissed.
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SECOND CLAIM
NO CAUSE OF ACTION FOR FALSE IMPRISONMENT AGAINST BSC,
QUINONES, TRIPATHI, AND CHAPMAN
Plaintiff fails to state a claim against the BSC Defendants for false imprisonment. False
arrest and false imprisonment are synonymous. Fischetti v City of NY, 199 A.D.3d 891, 892 (2d
Dep’t 2021). Plaintiff must plead “defendant intended to confine the plaintiff, that the plaintiff
was conscious of the confinement and did not consent to the confinement, and that the
confinement was not otherwise privileged.” Tueme v. Lezama, 217 A.D.3d 715, 716-717 (2d
Dep’t 2023). For a civilian to be liable for false arrest, a civilian “defendant must have
affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it
to be made or showing active, officious and undue zeal, to the point where the officer is not
acting of his or her own volition.” Williston v. Jack Resnick & Sons, Inc., 177 A.D.3d 822, 823
(2d Dep’t 2019); Petrychenko v. Solovey, 99 A.D.3d 777, 779 (2d Dept 2012) (referring to false
imprisonment); Trec v. Cazares, 185 A.D.3d 866, 868 (2d Dep’t 2020) (claim dismissed as
“plaintiff alleged only that Cazares made false statements to the police, not any facts that could
lead to the conclusion that any of the defendants ‘affirmatively induced the [arresting] officer to
act, such as taking an active part in the arrest and procuring it to be made or showing active,
officious and undue zeal, [or] the officer [was] not acting of his [or her] own volition”)
(emphasis added).
A. No Intent to Confine Plaintiff, Consciousness, or Lack of Consent
Plaintiff does not allege the BSC Defendants intended to confine him, that he was
conscious, and that the confinement was not privileged. Tueme, 217 A.D.3d at 716-717. While
Plaintiff claims he was arrested and handcuffed (Compl., { 26), he fails to plead words and acts
by the BSC Defendants leading to arrest or imprisonment. Plaintiff alleges all defendants
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“conspired to falsely accuse plaintiff of larceny and criminal possession of stolen property,”
(Compl., § 24) (emphasis added), that unspecified defendants were “aware of plaintiff's valid
and lawful justification to maintain temporary possession of Dr. Haq’s equipment... [and
unspecified defendants] caused plaintiffto be tightly handcuffed and arrested, (Compl., ] 25).
Plaintiff pleads a legal conclusion that all “defendants are liable to plaintiff for having conspired
to...and for having falsely imprisoned him in the absence of probable cause...” (Compl., § 38)
(emphasis added). Repeating the words “conspired and “falsely” does not provide the facts to
plead that the BSC Defendants intended to confine Plaintiff.
A. Plaintiff Does Not Plead BSC, Quinones, Tripathi, or Chapman Coopted NYPD or
Lack of Probable Cause
Fatal to Plaintiff's false arrest claim is his failure to allege that the BSC Defendants
communicated with police in a manner leading to arrest, let alone that they “procured it to be
made” or “show[ed] active, officious and undue zeal, to the point where the officer is not acting
of his or her own volition.” Williston, 177 A.D.3d at 823 (emphasis added); see also, Morgan v.
Nassau County, 2009 U.S. Dist. LEXIS 79180, at *55-56 (E.D.N.Y. Sep. 1, 2009, No. 03-CV-
5109 (SLT) (WDW)) (“defendant did not speak to the police until after an arrest...”)
As noted in Trec, alleging a civilian made “false statements to the police” is insufficient
to plead false arrest. 185 A.D.3d at 868. Similarly, there are no allegations that the BSC
Defendants gave false information to any officer resulting in arrest. Plaintiff alleges all
defendants “caused him to be tightly handcuffed” and unspecified “defendants provided false
information to prosecutors” (Compl. { 28), not arresting officers). This is insufficient to plead
that the BSC Defendants caused an arresting “officer [to not be] acting of his [or her] own
volition.” See, Trec, 185 A.D.3d at 868. In the absence of an allegation that the BSC Defendants
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spoke with or coopted the police to arrest, the Complaint fails to plead that the BSC Defendants
intended to confine Plaintiff. Moreover, as Plaintiff “relinquish[ed] the equipment” after his
“temporary possession” of Haq’s equipment, it appears clear that the officers had probable cause
to arrest Plaintiff (Compl. J 21, 25).
THIRD CLAIM
NO CAUSE OF ACTION FOR MALICIOUS PROSECUTION AGAINST BSC,
QUINONES, TRIPATHI, AND CHAPMAN EXISTS
The elements of “malicious prosecution are: (1) the commencement or continuation of a
criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding
in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4)
actual malice,” De Lourdes Torres v Jones, 26 N.Y.3d 742, 760 (2016). “The unique elements
of malicious prosecution . . . place a heavy burden on . . . plaintiffs. Jd. As discussed below,
Plaintiff failed to plead adequately a claim for malicious prosecution.
A. Plaintiff Did Not Plead That BSC, Quinones, Tripathi, or Chapman Commenced a
Proceeding
Plaintiff does not plead that the BSC Defendants, all civilians, commenced or continued a
criminal prosecution. For a civilian to initiate a criminal proceeding to support malicious
prosecution, it must be shown that defendant played an active role in the prosecution, such as
giving advice and encouragement or importuning the authorities to act. See Williston v Jack
Resnick & Sons, Inc., 177 A.D.3d 822, 823 (2d Dep’t 2019). A civilian defendant who merely
provides information to law enforcement authorities, who are free to exercise their own
independent judgment as to whether to make an arrest and file criminal charges, will not be held
liable for false arrest or malicious prosecution. Tueme v. Lezama, 217 A.D.3d 715, 717 (2d Dep’t
5 Police issue DATs, not prosecutors.
9
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2023) (“Merely giving false information to the authorities does not constitute initiation of the
proceeding without an additional allegation that, at the time the information was provided, the
defendant knew it to be false, yet still gave it to the police or District Attorney”) (emphasis
added).
Here, Plaintiff does not allege that the BSC Defendants personally spoke to the arresting
officers, or assumed an “active role in the prosecution, such as giving advice and encouragement
or importuning” prosecutors to act. Williston, 177 A.D.3d at 823. In fact, it remains unknown
whether a criminal court complaint was filed, and if it was, who signed the complaint to convert
it into a first party information. Plaintiff makes conclusory allegations that the BSC Defendants
“conspired” with other defendants to falsely accuse plaintiffof larceny and criminal possession
of stolen property “to maliciously prosecute him.” (Compl, §{] 24, 41). As discussed above in
Section I, conclusory statements of conspiracy and legal conclusions are not entitled to an
inference of truth.
Even if a Defendant is “aware” that an allegation was untrue, Plaintiff do
Preview
INDEX NO. 533822/2023 FILED: KINGS COUNTY CLERK 01/02/2024 12:54 PM NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/02/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS IFTIKHAR DIN, Index No. 533822/2023 Plaintiff, -against- BOSTON SCIENTIFIC CORPORATION, et al., Defendants. MEMORANDUM OF LAW IN SUPPORT OF PRE-ANSWER MOTION TO DISMISS THE COMPLAINT, AND CROSS-CLAIMS FOR FAILURE TO STATE A CAUSE OF ACTION UNDER CPLR § 3211(a)(7) AND FAILURE TO PLEAD DEFAMATION WITH PARTICULRITY PURSUANT TO CPLR § 3016(a) ON BEHALF OF BOSTON SCIENTIFIC CORPORATION, ABRAHAM QUINONES, SUNIL TRIPATHI, AND JASON CHAPMAN Tanenbaum Keale LLP Dennis E. Vega, Esq. Three Gateway Center Suite 1301 Newark, New Jersey 07102 973-242-0002 dvega@tktrial.com Attorneys for Defendants Boston Scientific Corporation, Abraham Quinones, Sunil Tripathi and Jason Chapman 1 of 34 INDEX NO. 533822/2023 FILED: KINGS COUNTY CLERK 01/02/2024 12:54 PM NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/02/2024 TABLE OF CONTENTS TABLE OF AUTHORITIES PRELIMINARY STATEMENT STATEMENT OF PLAINTIFF’S ALLEGATIONS LEGAL STANDARD ARGUMENT I PLAINTIFF’S ALLEGATIONS OF CONSPIRACY DO NOT EXCUSE THE FAILURE TO PROPERLY PLEAD UNDERLYING TORTS ... IL. PLAINTIFF’S ENTIRE COMPLAINT FAILS TO STATE A CAUSE OF ACTION AGAINST BSC, QUINONES, TRIPATHI, AND CHAPMAN FIRST CLAIM NO CAUSE OF ACTION FOR CIVIL ASSAULT AND BATTERYAGAINST BSC, QUINONES, TRIPATHI, AND CHAPMAN EXISTS... SECOND CLAIM NO CAUSE OF ACTION FOR FALSE IMPRISONMENT AGAINST BSC, QUINONES, TRIPATHI, AND CHAPMAN A No Intent to Confine Plaintiff, Consciousness, or Lack of Consent. A Plaintiff Does Not Plead BSC, Quinones, Tripathi, or Chapman Coopted NYPD or Lack of Probable Cause THIRD CLAIM NO CAUSE OF ACTION FOR MALICIOUS PROSECUTION AGAINST BSC, QUINONES, TRIPATHI, AND CHAPMAN EXISTS A Plaintiff Did Not Plead That BSC, Quinones, Tripathi, or Chapman Commenced a Proceeding B Probable Cause Exists 11 C. Plaintiff Did Not Plead Actual Malice 12 FOURTH CLAIM 12 NO CAUSE OF ACTION FOR NEGLIGENCE; NEGLIGENT ii 2 of 34 INDEX NO. 533822/2023 FILED: KINGS COUNTY CLERK 01/02/2024 12:54 PM NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/02/2024 HIRING/TRAINING/RETENTION AGAINST BSC, QUINONES, TRIPATHI, AND CHAPMAN EXISTS 12 A. Negligence 12 B Negligent Hiring/Training/Retention 13 FIFTH CLAIM 16 NO CAUSE OF ACTION FORINTENTIONAL INFLICITON OF EMOTIONAL DISTRESS (“ITED”) OR NEGLIGENT INFLCITION OF EMOTIONAL DISTRESS (“NIED”)AGAINST BSC, QUINONES, TRIPATHI, AND CHAPMAN EXISTS 16 1 Plaintiff Does Not Plead TED. ............... cece esses eeeseseeseseseeseseeseseseseseesesesneeeeees 16 2 No Extreme and Outrageous Conduct. 17 3. No Intent or Causation 17 4. Plaintiff Does Not Plead “Severe” Emotional Distress. 18 Plaintiff Does Not Plead NIED Against BSC, Quinones, Tripathi, and Chapman 18 No Duty of Care Owed to Plaintiff. 18 No Direct Mental Injury. 0.0.0.0. ccc ececceeseseseseeeseseseeescseseseseeescseseseseseeeeesseeeseeaees 18 No Guarantee of Genuineness of Mental Injury 19 B In the Alternative, Duplication 19 SIXTH CLAIM 20 NO CAUSE OF ACTION UNDER NYC ADMIN. CODE § 8-802 AGAINST BSC, QUINONES, TRIPATHI, AND CHAPMAN EXISTS 20 SEVENTH CLAIM 21 NO CAUSE OF ACTION FOR DEFAMATION AGAINST BSC, QUINONES, TRIPATHI, AND CHAPMAN EXISTS 21 A Plaintiff Does Not Plead The Specific Defamatory Words 21 B Plaintiff Does Not Plead Time, Date, Place or Manner. 22 EIGHTH CLAIM. 22 NO CAUSE OF ACTION FOR MALICIOUS ABUSE OF PROCESS AGAINST BSC, iii 3 of 34 INDEX NO. 533822/2023 FILED: KINGS COUNTY CLERK 01/02/2024 12:54 PM NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/02/2024 QUINONES, TRIPATHI, AND CHAPMAN EXISTS 22 NINTH CLAIM 23 NO CAUSE OF ACTION FOR FAILURE TO INTERVENE AGAINST BSC, QUINONES, TRIPATHI, AND CHAPMAN EXISTS 23 TENTH CLAIM 23 PUNTIVE DAMAGES AND ATTORNEY’S FEES ARE NOT CAUSES OF ACTION AND SHOULD BE DISMISSED 23 CONCLUSION 24 WORD COUNT CERTIFICATION 25 iv 4 of 34 INDEX NO. 533822/2023 FILED: KINGS COUNTY CLERK 01/02/2024 12:54 PM NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/02/2024 TABLE OF AUTHORITIES Cases Abacus Fed. Sav. Bank v. Lim, 75 A.D.3d 472, 474 (1st Dept 2010) Alexander & Alexander, Inc. v. Fritzen, 68 N.Y.2d 968, 969 (1986) Amon v. Drohan, 2020 N.Y. Slip Op 30299[U], *2 (Sup. Ct., NY County 2020) 10 Arvanitakis v Lester, 145 AD3d 650, 651 (2d Dep’t 2016) 20 Berrios v. Our Lady of Mercy Med. Ctr., 20 A.D.3d 361, 363 (1st Dep’t 2005) 16 Blanco v. Polanco, 116 A.D.3d 892, 896 (2d Dept 2014) 2,5 Boliak v Reilly, 2017 N.Y. Slip Op. 32010[U], *8 (Sup Ct, N.Y. County 2017) 11 Brandy B. v Eden Cent. School Dist. 15 NY3d 297, 302 [2010] 14 Brennan v Commonwealth Bank & Trust Co., 65 AD2d 636, 409 NYS2d 266 (3d Dept 1978). 15 Brown v Sears Roebuck and Co., 297 A.D.2d 205, 212 (1st Dep’t 2002) 16 Cerilli v. Kezis, 16 A.D.3d 363, 364 (2d Dept 2005) Chanko v. American Broadcasting Cos. Inc., 27 N.Y.3d 46, 56 (2016) 16 Charkhy v. Altman, 252 A.D.2d 413, 414 (Ist Dep’t 1998) CPLR § 3211(a)(7) 1,4 Cresser v. Am. Tobacco Co., 174 Misc 2d 1, 7, n 4 (Sup. Ct., Kings County 1997) Vv 5 of 34 INDEX NO. 533822/2023 FILED: KINGS COUNTY CLERK 01/02/2024 12:54 PM NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/02/2024 Curiano vy. Suozzi, 63 N.Y.2d 113, 116 (1984) 22 De Lourdes Torres v Jones, 26 N.Y.3d 742, 760 (2016) 9,12 Farrell v Allianz Life Ins. Co. of N. Am., 2011 NY Slip Op 30962[U], *4 (Sup. Ct., Nassau County 2011) 18 Fiesel v. Nanuet Properties Corp., 125 A.D.2d 292, 508 N.Y.S.2d 576 (2d Dept. 1986) 23 Fischetti v City of NY, 199 A.D.3d 891, 892 (2d Dep’t 2021) Fuller v. Fam. Servs. of Westchester, Inc., 209 A.D.3d 983, 983, 177 N.Y.S.3d 141, 142 (2022) 15 Goldman vy. Citicore I, LLC, 149 A.D.3d 1042, 1045 (2d Dep’t 2017) 22 Haladan Mgt. Co. v Estate of Elizabeth Ann Davies, 48 Mise 3d 1227 (Civ. Ct., Kings County 2015) Hauser v. Bartow, 273 N.Y. 370, 374 (1937) 22 Hazelwood v. City of NY, 2016 N.Y. Misc. LEXIS 19094, at *5 (Sup Ct., Queens County Aug. 15, 2016, No. 705848/2016) 19 Kaba v. Zara USA, Inc., 2023 N.Y. Slip. Op. 30930[U], *4 (Sup. Ct., N.Y. County 2023) Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 161, 654 N.Y.S.2d 791) 14 Kilkenny v. Law Office of Cushner & Garvey, LLP, 76 A.D.3d 512 (2d Dep’t 2010) 21, 22 Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994) Lynch Dey. Assoc., Inc. v Johnson, 219 A.D.3d 1328, 1331 (2d Dept 2023) 16 Manas v. VMS Assoc., LLC, 53 AD3d 451, 863 N.Y.S.2d 4 (1st Dept 2008) 21 vi 6 of 34 INDEX NO. 533822/2023 FILED: KINGS COUNTY CLERK 01/02/2024 12:54 PM NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/02/2024 Marks v. Marks, 113 A.D.2d 744, 745 (2d Dep’t 1985) 22 Matthaus v. Hadjedj, 148 A.D.3d 425, 425-426 (1st Dep’t 2017) 16 Merchants Mut. Ins. Co. v. Quality Signs of Middletown, 110 A.D.3d 1042, 1043 (2d Dep’t 2013) 12 Mondello v Mondello, 161 AD2d 690, 691 (2d Dep’t 1990) 12 Moore Charitable Found. v PJTPartners, Inc., 2023 NY Slip Op 03185 (2023) (citing Restatement [Second] ofTorts § 317, Comment b and Restatement [Second] of Agency § 219) 13, 14, 15 Morgan v. Nassau County, 2009 U.S. Dist. LEXIS 79180, at *55-56 (E.D.N.Y. Sep. 1, 2009, No. 03-CV-5109 (SLT) (WDW)) Nardelli v Stamberg, 44 NY2d 500, 503 [1978] 12 Navarro v. Federal Paper Bd. Co., 185 A.D.2d 590, 593-94 (3 Dep’t 1992) 16 Nisari v. Ramjohn, 85 A.D.3d 987 (2d Dep't 2011) Owen v.Leventritt, 174 A.D.2d 471, 472 (1st Dep't 1991) 17 Park v New York Cent. & H.R.R. Co., 155 NY 215, 49 NE 674 (1898) 15 Perez v Comparato, 2023 NY Slip Op 31397[U], *3 (Sup. Ct., N.Y. County 2023) 23 Petkewicz, 137 A.D.3d at 990 17 Petrychenko v. Solovey, 99 A.D.3d 777, 779 (2d Dept 2012) Pietroforte v Ctr. for Nursing & Rehabilitation, 2022 N.Y. Misc. LEXIS 17544, at *48 (Sup. Ct., N.Y. County May 27, 2022, No. 805149/2014) 10 vii 7 of 34 INDEX NO. 533822/2023 FILED: KINGS COUNTY CLERK 01/02/2024 12:54 PM NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/02/2024 Pincus v. Wells, 35 A.D.3d 569 (2d Dep't 2006) Porta v. Alacra, Inc., 142 A.D.3d 851, 853 (1st Dept 2016) 23 Primeau v. Town of Amherst, 303 A.D.2d 1035 (4th Dept.2003)) 14 Rau v. Borenkoff, 262 A.D.2d 388, 389 (2d Dep’t 1999) Reaves v. New York City Dep't of Educ., 218 A.D.3d 697, 193 N.Y.S.3d 216, 217 (2"4 Dep’t 2023) 14 Rendely v. Town of Huntington, 2006 U.S. Dist. LEXIS 97203, at *21-22 (E.D.N.Y. Aug. 29, 2006) 23 Residential Bd. of Mgrs. of the Toren Condominium v BFC Partners, 2014 NY Slip Op 33648[U], *5 (Sup. Ct., N.Y. County 2014) S.C. v. New York City Dept. of Educ., 97 A.D.3d 518, 519-520, 949 N.Y.S.2d 71 14 Shaw v. City of NY, 139 A.D.3d 698, 699 (2d Dep’t 2016) 11 Shaw v. Club Mgrs. Assn. of Am., Inc., 2010 NY Slip Op 3051 1[U], *10 (Sup. Ct., Nassau County 2010) Shor v. Touch-N-Go Farms, Inc., 89 A.D.3d 830, 831, 933 N.Y.S.2d 686 14 Simkin v. Blank, 19 N.Y.3d 46, 52, 945 N.Y.S.2d 222, 968 N.E.2d 459 15 Skinner v Govt. Emples. Ins. Co., 196 AD2d 494, 494 (2d Dept 1993) 21 Smiley v. N. Gen. Hosp., 59 A.D.3d 179, 180, 872 N.Y.S.2d 456, 457 (1 Dep’t 2009) 13 Smith-Henze v. Edwin Gould Servs. for Child. & Fams., Officers & Emps., No. 06 CIV. 3049 LBS DCF, 2006 WL 3771092, at *6 (S.D.N.Y. Dec. 21, 2006) 14 Taggart v Costabile, 131 A.D.3d 243, 255-56 (2d Dep’t 2015) 18, 19 Trec v. Cazares, viii 8 of 34 INDEX NO. 533822/2023 FILED: KINGS COUNTY CLERK 01/02/2024 12:54 PM NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/02/2024 185 A.D.3d 866, 868 (2d Dep’t 2020) 7,8 Trott v. Merit Dept. Store, 106 A.D.2d 158, 159, 484 N.Y.S.2d 827 [1985] 13 Tueme v. Lezama, 217 A.D.3d 715, 716-717 (2d Dep’t 2023) 7,9, 10 W.G. v N. Am. Old R.C. Church, 2022 NY Slip Op 34456[U], *12 (Sup. Ct., Kings County 2022)... 19 Waldhof v Derek K. Miller Enters., 2022 N.Y. Misc. LEXIS 4585, at *4-5 (Sup. Ct., Suffolk County July 31, 2022, No. 5053/2015) 10 Williams v Williams, 28 N.Y.2d 592 (1969) 22 Williston v. Jack Resnick & Sons, Inc., 177 A.D.3d 822, 823 (2d Dep’t 2019) 7, 8,9,10 Wrase v. Bosco, 271 A.D.2d 440, 706 N.Y.S.2d 434 [2000]) 13 Zapata v. Tufenkjian, 123 A.D.3d 814, 815 (2d Dep’t 2014) 16 Other Authorities 185 A.D.3d at 868.. 20 N.Y. Jur. 2d, Conspiracy-Civil Aspects .......ccecceceeseeesesesescsesesesesescseseseseseseseseeeseeeseeeseeeeeeneeees 5 https://dictionary.cambridge.org/dictionary/english/relinquish NYC Administrative Code 8-803(a) 23 NYC. Admin. Code § 8-802 20, 23 Rules CPLR § 3016(a) 1,21 ix 9 of 34 INDEX NO. 533822/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF 01/02/2024 Defendants Boston Scientific Corporation (“BSC”), Abraham Quinones (“Quinones”), Sunil Tripathi (“Tripathi”), and Jason Chapman (“Chapman”) (collectively, where appropriate, the “BSC Defendants”) through their counsel, Tanenbaum Keale LLP, submit this Memorandum of Law in support oftheir pre-answer motion to dismiss Plaintiff, Iftikhar Din’s (“Plaintiff”), Verified Complaint (“Complaint”) pursuant to CPLR § 3211(a)(7) because it (a) fails to state a cause of action against BSC, Quinones, Tripathi, and Chapman, and (b) it fails to plead defamation against BSC, Quinones, Tripathi, and Chapman with particularity as required by CPLR § 3016(a). PRELIMINARY STATEMENT Plaintiff was arrested by Defendant officers of the New York City Police Department (“NYPD”), following an incident that Plaintiff alleges “at least” Defendants Tina Napolitano (“Napolitano”), Quinones, Sunil Pumila (“Pumila”) and Monet Allen (“Allen”)! arrived at Dr. Salman Haq’s (“Haq”) office to secure Haq’s equipment the day after Haq’s passing. The NYPD officers found Plaintiff in possession? of Haq’s equipment, and arrested Plaintiff. On November 16, 2023, Plaintiff filed a sweeping Complaint alleging ten causes of action, naming nine Defendants, and Jane and John Doe 1-10. The complaint is completely unclear as to which claim(s) and allegation(s) apply to which Defendants. ' Plaintiff alleges Napolitano is Haq’s part-time secretary, and Allen and Pumila are police officer employed by NYPD. (Compl., ff 14, 17). Plaintiff does not allege how NYPD arrived at the scene. ? Plaintiff pleads Haq was a “tenant” and admits he took “temporary possession” of the equipment. (Compl. J 18, 25). He does not plead he spoke with Haq’s estate. A lease for a fixed term does not terminate upon the death of the tenant. It becomes the property of the tenant’s estate. Haladan Mgt. Co. v Estate of Elizabeth Ann Davies, 48 Misc 3d 1227 (Civ. Ct., Kings County 2015). 1 10 of 34 FILED: KINGS COUNTY CLERK 01/702/2024 12:54 PM INDEX NO. 533822/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF 01/02/2024 Plaintiff’s action jumbles bare allegations, parroted elements, and legal conclusions that fail to state claims against any BSC Defendant. Plaintiff shrouds its bare bones Complaint with group pleadings and declarations of unsupported conspiracy.* Plaintiff fails to plead that any BSC Defendant, all civilians, coopted the NYPD, demanded arrest, or even made a specific statement to an arresting officer prior to his arrest. Plaintiff fails to plead that any BSC Defendant knowingly provided false information to police or prosecutors to initiate or continue a prosecution. There are no facts pled that NYPD didn’t act on its own after finding Plaintiff in unlawful possession of Haq’s property. The Complaint fails to set forth the particular words comprising Plaintiff's defamation claim and who uttered the words. The Complaint fails to plead the elements of the alleged causes of action and must be dismissed against the BSC Defendants for failure to state a claim. STATEMENT OF PLAINTIFF’S ALLEGATIONS On November 18, 2022, Plaintiff, a medical doctor, was at his office at 405 5th Avenue, Brooklyn. (Compl. §j 17). Plaintiff alleges he received a call from Napolitano, “part-time secretary to plaintiff's tenant . . . [ Haq], who had died suddenly the day before.” (/d. at § 18). Napolitano “informed plaintiff that she would be coming to his office to retrieve all of Dr. Haq’s equipment.” (/d. at § 19). Plaintiff alleges he “informed Napolitano that she did not own Dr. Haq’s computers and other equipment,” that they contained HIPAA sensitive material, and that he “needed to speak with Dr. Haq’s family in Texas” before it could be released. (Jd. at § 20). 3 Plaintiff's conclusory claim that civilian Defendants Napolitano, BSC, Quinones, and Tripathi conspired with NYPD to falsely accuse plaintiff of larceny and criminal possession are insufficient to plead conspiracy. Blanco v. Polanco, 116 A.D.3d 892, 896 (2d Dept 2014). 2 11 of 34 INDEX NO. 533822/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF 01/02/2024 Later that day, Napolitano, and “at least” Quinones, Pumila and Allen arrived at plaintiff's office and allegedly “aggressively demanded the plaintiff relinquish the equipment. ” (d. at § 21).* Plaintiff alleges that BSC employs Defendants Quinones, Tripathi and Chapman, (d. at § 18), and that Allen, Pumila, and Franzt Souffrant (“Souffrant”) are NYPD police officers. (/d. at 44 13-14). Plaintiff alleges, “upon information and belief” that Napolitano, BSC, Quinones, Tripathi and Campell [sic] sought Haq 2g Ss ‘equipment to improperly obtain and access information, including protected health information,” (/d. at § 23), and in conclusory fashion, alleges Napolitano, BSC, Quinoes, Tripathi and Campbell [sic] “conspired” with NYPD employees Allen, Pumilla and Souffrant to “falsely accuse plaintiffof larceny and criminal possession of stolen property...” (Id. at § 24). Plaintiff further alleges in conclusory fashion that “defendants caused him to be handcuffed and arrested in public,” (/d. at § 25), that “Defendants Pumilia and Allen subjected him to assault and battery” (/d. at { 26), defamed him, (/d. at § 27), and that he was held overnight, issued a desk appearance ticket [“DAT”] and charges were ultimately dismissed. (/d. at J{ 27, 30 and 31). Plaintiff alleges in conclusory fashion that all “Defendants provided false information to the prosecutors ... that Napolitano was plaintiff's office manager and that there was reason to believe that plaintiff committed theft and possession of stolen property” and “Defendants were aware that none of the allegations were true.” (/d. at § 24 and 28). 4 By using the word “relinquish,” Plaintiff admits he took possession of Dr. Haq’s equipment, to which he had no right. Relinquish means “to give up something such as a responsibility or claim” https://dictionary.cambridge.org/dictionary/english/relinquish 3 12 of 34 INDEX NO. 533822/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/02/2024 Plaintiff's conclusory allegations lack facts necessary to afford Plaintiffan inference of truth and the Complaint omits elements necessary to plead claims against the BSC Defendants. Therefore, the Complaint against the BSC Defendants should be dismissed. LEGAL STANDARD On a CPLR § 3211 motion to dismiss, the court accepts factual allegations in the complaint as true and makes all reasonable inferences in the non-moving party’s favor. Leon v. Martinez, 84 N.Y 2d 83, 87-88 (1994); Nisari v. Ramjohn, 85 A.D.3d 987 (2d Dep't 2011). However, this premise is not absolute. Bare legal conclusions or factual claims that are either inherently incredible or flatly contradicted by documentary evidence are not presumed to be true, nor are they accorded favorable inferences. Nisari, 85 A.D.3d 987. If a party's allegations fail to state any cognizable legal theory, dismissal is appropriate. Pincus v. Wells, 35 A.D.3d 569 (2d Dep't 2006). Moreover, allegations “unsupported by any facts, [that] do nothing more than parrot the elements” are insufficient. Residential Bd. of Mgrs. of the Toren Condominium v BFC Partners, 2014 NY Slip Op 33648[U], *5 (Sup. Ct., N.Y. County 2014); Rau v. Borenkoff, 262 A.D.2d 388, 389 (2d Dep’t 1999) (conclusory allegations unsupported by facts are not deemed true, and absent facts there are no inferences to be drawn). ARGUMENT I PLAINTIFF’S ALLEGATIONS OF CONSPIRACY DO NOT EXCUSE THE FAILURE TO PROPERLY PLEAD UNDERLYING TORTS Initially, this Court should review the Complaint skeptically. Plaintiff alleges conspiracy to cloak his inability to plead the tort claims. A “mere conspiracy to commit a [tort] is never of itself a cause of action.” Alexander & Alexander, Inc. v. Fritzen, 68 N.Y.2d 968, 969 (1986). To plead conspiracy, Plaintiff must allege (1) an agreement to participate in an unlawful act, (2) 4 13 of 34 INDEX NO. 533822/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF 01/02/2024 injury caused by an unlawful overt act performed by one of the parties to the agreement; (3) which overt act was done pursuant to and in furtherance of the common scheme. Cresser v. Am. Tobacco Co., 174 Misc 2d 1, 7, n 4 (Sup. Ct., Kings County 1997). Bare conclusory allegations of conspiracy are insufficient. See Blanco v Polanco, 116 AD34d 892, 896 (2d Dept 2014); Shaw v. Club Mgrs. Assn. of Am., Inc.,2010 NY Slip Op 30511[U], *10 (Sup. Ct., Nassau County 2010) (“plaintiffs must do more than assert a bare bones allegation that a conspiracy exists.”). One must allege facts sufficient to constitute an agreement or common understanding, a joint intent to tortiously injure. 20 N.Y. Jur. 2d, Conspiracy-Civil Aspects 19; Abacus Fed. Sav. Bank v. Lim, 75 A.D.3d 472, 474 (1st Dept 2010) (conspiracy requires an “intentional participation in the furtherance of a plan”). Here, the allegations of conspiracy are contain no factual allegations detailing specifically how any BSC Defendant agreed with anyone to participate in an unlawful act, commit a tort, injure Plaintiff, or that any of their acts were in furtherance of an agreement to arrest or prosecute Plaintiff. Merely stating that the BSC Defendants “conspired” with NYPD employees and others “to falsely accuse plaintiffof larceny and criminal possession of stolen property,” and “imprison him” (Compl. ff 24, 38), is the textbook unsupported “bare bones allegation that a conspiracy exists,” Shaw, supra. These allegations are not entitled to an inference of truth, are defective, and Plaintiff cannot rely on conspiracy to link the BSC Defendants to any wrongdoing. Il. PLAINTIFF’S ENTIRE COMPLAINT FAILS TO STATE A CAUSE OF ACTION AGAINST BSC, QUINONES, TRIPATHI, AND CHAPMAN Each alleged claim in Plaintiff's complaint fails to state a cause of action against the BSC Defendants. 5 14 of 34 INDEX NO. 533822/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/02/2024 FIRST CLAIM NO CAUSE OF ACTION FOR CIVIL ASSAULT AND BATTERYAGAINST BSC, QUINONES, TRIPATHI, AND CHAPMAN EXISTS Plaintiff fails to plead assault or battery against the BSC Defendants. Plaintiff alleges that in the “course of seizing and arresting plaintiff, defendants including Pumila and Allen subjected him to assault and battery,” (Compl., §/ 26), and by that conduct, all “defendants are liable” (/d. { 34). To plead assault, plaintiff must allege that defendants intentionally placed him in fear of imminent harmful or offensive contact. Charkhy v. Altman, 252 A.D.2d 413, 414 (1st Dep’t 1998). The elements of civil battery are bodily contact, made with intent, and which is offensive in nature. Cerilli v. Kezis, 16 A.D.3d 363, 364 (2d Dept 2005). Plaintiff sets forth no facts specific to the BSC Defendants’ conduct to state a claim for assault or battery. Plaintiff doesn’t allege that the BSC Defendants intentionally placed Plaintiff in fear of imminent harmful or offensive contact, or that they were in a position to do so. Similarly, Plaintiff fails to allege that the BSC Defendants intended to or made contact with Plaintiff, let alone that it was offensive. This warrants dismissal of the assault and battery claims as a matter of law. Further, if Plaintiff attempts to ground his claim on allegedly being handcuffed by police, (Compl. § 25), and attempts to transfer intent to the BSC Defendants, this too fails. See Kaba v. Zara USA, Inc., 2023 N.Y. Slip. Op. 30930[U], *4 (Sup. Ct., N.Y. County 2023) (dismissing assault and battery as “the complaint d[id] not contain any facts that would indicate the police officers were being pressured or...induced...to effectuate plaintiffs’ detainment...In the absence of allegations that Zara coopted the officers...liability for assault and battery cannot lie...”) Like Kaba, there are no allegations any BSC Defendant spoke to the police or coopted the police for purposes of arresting or handcuffing Plaintiff. As such, any assault and battery claims lodged against any BSC Defendant, must be dismissed. 6 15 of 34 INDEX NO. 533822/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF 01/02/2024 SECOND CLAIM NO CAUSE OF ACTION FOR FALSE IMPRISONMENT AGAINST BSC, QUINONES, TRIPATHI, AND CHAPMAN Plaintiff fails to state a claim against the BSC Defendants for false imprisonment. False arrest and false imprisonment are synonymous. Fischetti v City of NY, 199 A.D.3d 891, 892 (2d Dep’t 2021). Plaintiff must plead “defendant intended to confine the plaintiff, that the plaintiff was conscious of the confinement and did not consent to the confinement, and that the confinement was not otherwise privileged.” Tueme v. Lezama, 217 A.D.3d 715, 716-717 (2d Dep’t 2023). For a civilian to be liable for false arrest, a civilian “defendant must have affirmatively induced the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his or her own volition.” Williston v. Jack Resnick & Sons, Inc., 177 A.D.3d 822, 823 (2d Dep’t 2019); Petrychenko v. Solovey, 99 A.D.3d 777, 779 (2d Dept 2012) (referring to false imprisonment); Trec v. Cazares, 185 A.D.3d 866, 868 (2d Dep’t 2020) (claim dismissed as “plaintiff alleged only that Cazares made false statements to the police, not any facts that could lead to the conclusion that any of the defendants ‘affirmatively induced the [arresting] officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, [or] the officer [was] not acting of his [or her] own volition”) (emphasis added). A. No Intent to Confine Plaintiff, Consciousness, or Lack of Consent Plaintiff does not allege the BSC Defendants intended to confine him, that he was conscious, and that the confinement was not privileged. Tueme, 217 A.D.3d at 716-717. While Plaintiff claims he was arrested and handcuffed (Compl., { 26), he fails to plead words and acts by the BSC Defendants leading to arrest or imprisonment. Plaintiff alleges all defendants 7 16 of 34 INDEX NO. 533822/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF 01/02/2024 “conspired to falsely accuse plaintiff of larceny and criminal possession of stolen property,” (Compl., § 24) (emphasis added), that unspecified defendants were “aware of plaintiff's valid and lawful justification to maintain temporary possession of Dr. Haq’s equipment... [and unspecified defendants] caused plaintiffto be tightly handcuffed and arrested, (Compl., ] 25). Plaintiff pleads a legal conclusion that all “defendants are liable to plaintiff for having conspired to...and for having falsely imprisoned him in the absence of probable cause...” (Compl., § 38) (emphasis added). Repeating the words “conspired and “falsely” does not provide the facts to plead that the BSC Defendants intended to confine Plaintiff. A. Plaintiff Does Not Plead BSC, Quinones, Tripathi, or Chapman Coopted NYPD or Lack of Probable Cause Fatal to Plaintiff's false arrest claim is his failure to allege that the BSC Defendants communicated with police in a manner leading to arrest, let alone that they “procured it to be made” or “show[ed] active, officious and undue zeal, to the point where the officer is not acting of his or her own volition.” Williston, 177 A.D.3d at 823 (emphasis added); see also, Morgan v. Nassau County, 2009 U.S. Dist. LEXIS 79180, at *55-56 (E.D.N.Y. Sep. 1, 2009, No. 03-CV- 5109 (SLT) (WDW)) (“defendant did not speak to the police until after an arrest...”) As noted in Trec, alleging a civilian made “false statements to the police” is insufficient to plead false arrest. 185 A.D.3d at 868. Similarly, there are no allegations that the BSC Defendants gave false information to any officer resulting in arrest. Plaintiff alleges all defendants “caused him to be tightly handcuffed” and unspecified “defendants provided false information to prosecutors” (Compl. { 28), not arresting officers). This is insufficient to plead that the BSC Defendants caused an arresting “officer [to not be] acting of his [or her] own volition.” See, Trec, 185 A.D.3d at 868. In the absence of an allegation that the BSC Defendants 8 17 of 34 INDEX NO. 533822/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/02/2024 spoke with or coopted the police to arrest, the Complaint fails to plead that the BSC Defendants intended to confine Plaintiff. Moreover, as Plaintiff “relinquish[ed] the equipment” after his “temporary possession” of Haq’s equipment, it appears clear that the officers had probable cause to arrest Plaintiff (Compl. J 21, 25). THIRD CLAIM NO CAUSE OF ACTION FOR MALICIOUS PROSECUTION AGAINST BSC, QUINONES, TRIPATHI, AND CHAPMAN EXISTS The elements of “malicious prosecution are: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice,” De Lourdes Torres v Jones, 26 N.Y.3d 742, 760 (2016). “The unique elements of malicious prosecution . . . place a heavy burden on . . . plaintiffs. Jd. As discussed below, Plaintiff failed to plead adequately a claim for malicious prosecution. A. Plaintiff Did Not Plead That BSC, Quinones, Tripathi, or Chapman Commenced a Proceeding Plaintiff does not plead that the BSC Defendants, all civilians, commenced or continued a criminal prosecution. For a civilian to initiate a criminal proceeding to support malicious prosecution, it must be shown that defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act. See Williston v Jack Resnick & Sons, Inc., 177 A.D.3d 822, 823 (2d Dep’t 2019). A civilian defendant who merely provides information to law enforcement authorities, who are free to exercise their own independent judgment as to whether to make an arrest and file criminal charges, will not be held liable for false arrest or malicious prosecution. Tueme v. Lezama, 217 A.D.3d 715, 717 (2d Dep’t 5 Police issue DATs, not prosecutors. 9 18 of 34 INDEX NO. 533822/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/02/2024 2023) (“Merely giving false information to the authorities does not constitute initiation of the proceeding without an additional allegation that, at the time the information was provided, the defendant knew it to be false, yet still gave it to the police or District Attorney”) (emphasis added). Here, Plaintiff does not allege that the BSC Defendants personally spoke to the arresting officers, or assumed an “active role in the prosecution, such as giving advice and encouragement or importuning” prosecutors to act. Williston, 177 A.D.3d at 823. In fact, it remains unknown whether a criminal court complaint was filed, and if it was, who signed the complaint to convert it into a first party information. Plaintiff makes conclusory allegations that the BSC Defendants “conspired” with other defendants to falsely accuse plaintiffof larceny and criminal possession of stolen property “to maliciously prosecute him.” (Compl, §{] 24, 41). As discussed above in Section I, conclusory statements of conspiracy and legal conclusions are not entitled to an inference of truth. Even if a Defendant is “aware” that an allegation was untrue, Plaintiff do