           SUPREME COURT OF THE STATE OF NEW YORK
              Appellate Division, Fourth Judicial Department

710
CA 13-01447
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND WHALEN, JJ.


APRIL D=AMICO, PLAINTIFF-APPELLANT,

                     V                               MEMORANDUM AND ORDER

CORRECTIONAL MEDICAL CARE, INC., COUNTY OF
MONROE, MONROE COUNTY SHERIFF, ANDRE CARPIO,
MARIA CARPIO, ALSO KNOWN AS MARIA UMAR, AND
EMRE UMAR, DEFENDANTS-RESPONDENTS.


CHRISTOPHER J. ENOS, ROCHESTER, FOR PLAINTIFF-APPELLANT.

BOND, SCHOENECK & KING, PLLC, ROCHESTER (LOUIS JIM OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS CORRECTIONAL MEDICAL CARE, INC., ANDRE CARPIO,
MARIA CARPIO, ALSO KNOWN AS MARIA UMAR AND EMRE UMAR.

MERIDETH H. SMITH, COUNTY ATTORNEY, ROCHESTER (MALLORIE C. RULISON OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS COUNTY OF MONROE AND MONROE COUNTY
SHERIFF.


     Appeal from an order of the Supreme Court, Monroe County (Ann Marie
Taddeo, J.), entered November 19, 2012. The order granted the motions
of defendants to dismiss the amended complaint and denied the cross motions
of plaintiff for leave to serve an amended complaint.

     It is hereby ORDERED that the order so appealed from is unanimously
modified on the law by denying those parts of the motion of defendants
Correctional Medical Care, Inc., Andre Carpio, Maria Carpio, also known
as Maria Umar, and Emre Umar seeking dismissal of the first, second and
fifth causes of action in the amended complaint against them except insofar
as the motion sought dismissal of the fifth cause of action against
defendant Emre Umar, and reinstating those causes of action to that extent
and as modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking to recover
damages for abuse of process, false imprisonment/false arrest, malicious
prosecution, libel per se, intentional infliction of emotional distress,
and negligence, after she was allegedly falsely accused of stealing a
computer from defendant Correctional Medical Care, Inc. (CMC). Plaintiff
appeals from an order granting the motions to dismiss of defendants CMC,
Andre Carpio (Andre), Maria Carpio, also known as Maria Umar (Maria),
and Emre Umar (Emre) (collectively, CMC defendants) and defendants County
of Monroe (County) and Monroe County Sheriff (Sheriff) (collectively,
County defendants) (see CPLR 3211 [a] [5], [7], [8]), and denying
plaintiff=s cross motions for leave to serve an amended complaint.
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                                                               CA 13-01447


     Initially, with respect to the CMC defendants, we note that plaintiff
properly amended her complaint as of right by filing the verified amended
complaint after the CMC defendants moved to dismiss the original complaint
(see CPLR 3211 [f]; see also CPLR 3025 [a]; STS Mgt. Dev. v New York State
Dept. of Taxation & Fin., 254 AD2d 409, 410), and by contemporaneously
serving the amended complaint on the CMC defendants= attorney as part of
her cross motion (see CPLR 2103 [b]). As a result, the amended complaint
superseded the original complaint and became the only complaint in the
case (see Aikens Constr. of Rome v Simons, 284 AD2d 946, 947; see generally
Preston v APCH, Inc., 89 AD3d 65, 69-70). AWe [thus] consider the [CMC
defendants=] motion to dismiss as directed against the amended complaint
that plaintiff[] . . . submitted in [her] opposition to the motion@
(Ferguson v Sherman Sq. Realty Corp., 30 AD3d 288, 288; see Sage Realty
Corp. v Proskauer Rose, 251 AD2d 35, 38).

     With respect to the County defendants, the record establishes that
they were served with the amended complaint prior to their service of
a responsive pleading. Thus, the amended complaint was served as of right
on the County defendants (see CPLR 3025 [a]). We further note that
plaintiff has abandoned her sixth cause of action for intentional
infliction of emotional distress (see Ciesinski v Town of Aurora, 202
AD2d 984, 984).

      Turning to the merits, A[o]n these motions to dismiss, we accept
the facts alleged in the [amended] complaint as true and accord plaintiff
the benefit of every favorable inference@ (Kirchner v County of Niagara,
107 AD3d 1620, 1621). According to plaintiff, at some time prior to April
2008, CMC entered into a contract with the County whereby CMC would provide
medical services to inmates at the Monroe County Jail, which was operated
by the Sheriff. Maria served as CMC=s chief executive officer; her
husband, Emre, was the company=s president; and Maria=s brother, Andre,
was the company=s vice president. Plaintiff was employed by CMC as a health
services administrator from April 1, 2008 until she was fired on February
1, 2009. In January 2010, plaintiff filed a sexual harassment lawsuit
against CMC and Emre, alleging, inter alia, that she had been subjected
to unwelcome sexual conduct by Emre during her employment with CMC. In
December 2010, Maria, who was allegedly acting both individually and as
CEO of CMC, Emre, and Andre all made statements to an investigator in
the Sheriff=s Office, in the form of supporting depositions, accusing
plaintiff of stealing a laptop computer belonging to CMC the day after
her employment was terminated. Plaintiff alleged that the CMC defendants
made such statements with the intent of procuring her arrest for possession
of a stolen computer that each defendant knew was, in fact, not stolen.
 On December 15, 2010, plaintiff was charged by misdemeanor information,
which was affirmed by the investigator, with criminal possession of stolen
property in the fifth degree, a class A misdemeanor (see Penal Law '
165.40). Shortly thereafter, plaintiff was arrested without a warrant
and subjected to mandatory processing as a criminal defendant by the
investigator and other members of the Sheriff=s Office. On March 1, 2011,
upon motion of her attorney, the misdemeanor information was dismissed
in Town Court Aas being defective on its face.@

     With regard to the first and second causes of action for abuse of
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                                                                CA 13-01447

process and false imprisonment/false arrest, respectively, plaintiff
alleged that the County defendants were vicariously liable for the actions
of the investigator, who was acting Ain the course of his employment with
the [County], as a duly appointed Deputy acting under the supervision
and control of the [Sheriff].@ Plaintiff further alleged in the seventh
cause of action that the County, acting through the Sheriff and his deputies
and investigators, was negligent in allowing improper allegations of
criminal conduct to be brought against her. Although the County
defendants are not aggrieved parties on appeal (see CPLR 5511), we may
consider their contentions as alternative grounds for affirmance inasmuch
as they raised the issue of vicarious liability in Supreme Court (see
Town of Massena v Niagara Mohawk Power Corp., 45 NY2d 482, 488). It is
well settled that A[a] county may not be held responsible for the negligent
acts of the Sheriff and his deputies on the theory of respondeat superior
in the absence of a local law assuming such responsibility@ (Mosey v County
of Erie, 117 AD3d 1381, ___ [internal quotation marks omitted]; see Trisvan
v County of Monroe, 26 AD3d 875, 876, lv dismissed 6 NY3d 891). Section
39-10 (B) of the Monroe County Code, of which we take judicial notice
(see St. David=s Anglican Catholic Church, Inc. v Town of Halfmoon, 11
AD3d 874, 876, citing CPLR 4511 [a]), provides that Sheriff=s deputies
are Aincluded under the term >employee= for convenience of reference within
this chapter only,@ and that section further provides that A[t]he
provisions of this chapter shall not be construed as establishing an
employment or respondeat superior relationship between the County of
Monroe and the Sheriff of the County of Monroe, the Undersheriff of the
County of Monroe or any person appointed by the Sheriff of the County
of Monroe, including but not limited to Sheriff=s deputies. The provisions
of this chapter shall not be construed as an assumption by the County
of Monroe of responsibility or liability for the negligence or tortious
conduct of the Sheriff of the County of Monroe, the Undersheriff of the
County of Monroe or any person appointed by the Sheriff of the County
of Monroe, including but not limited to Sheriff=s deputies.@

     Thus, inasmuch as plaintiff asserted against the County causes of
action based only on respondeat superior, we conclude that the Aamended
complaint was properly dismissed against [the County] because [the County]
did not assume liability for the acts of the Sheriff or his deputies@
(Smelts v Meloni, [appeal No. 3], 360 AD2d 872, 873, lv denied 100 NY2d
516).

     It is also well established that Aa Sheriff cannot be held personally
liable for the acts or omissions of his deputies while performing criminal
justice functions, and that this principle precludes vicarious liability
for the torts of a deputy@ (Barr v Albany County, 50 NY2d 247, 257; see
Mosey, 117 AD3d at ___; Trisvan, 26 AD3d at 876). We thus conclude that
the amended complaint was properly dismissed against the Sheriff inasmuch
as all causes of action against him were based only on respondeat superior
(Trisvan, 26 AD3d at 876).

     We conclude, however, that the court erred in dismissing plaintiff=s
first cause of action, for abuse of process, against the CMC defendants,
and we therefore modify the order accordingly. AA plaintiff asserting
a cause of action for abuse of process must plead and prove that there
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                                                              CA 13-01447

was >(1) regularly issued process, either civil or criminal, (2) an intent
to do harm without excuse or justification, and (3) use of the process
in a perverted manner to obtain a collateral objective= @ (Liss v Forte,
96 AD3d 1592, 1593, quoting Curiano v Suozzi, 63 NY2d 113, 116). AIn
addition, the plaintiff must plead and prove actual or special damages
. . . , although . . . legal fees incurred in defending against false
criminal charges are sufficient@ (id.; see Parkin v Cornell Univ., 78
NY2d 523, 530). We conclude that the court erred in dismissing the cause
of action for abuse of process on the ground that there was Ano evidence@
to support the first element, i.e., that there was no evidence that the
CMC defendants caused criminal process to issue against plaintiff. It
is well settled that on a motion to dismiss a court must Aaccept the facts
as alleged in the complaint as true, accord plaintiffs the benefit of
every possible favorable inference, and determine only whether the facts
as alleged fit within any cognizable legal theory@ (Leon v Martinez, 84
NY2d 83, 87-88). A[T]he court=s role in a motion to dismiss is limited
to determining whether a cause of action is stated within the four corners
of the complaint, and not whether there is evidentiary support for the
complaint@ (Frank v DaimlerChrysler Corp., 292 AD2d 118, 121, lv denied
99 NY2d 502). Moreover, contrary to the CMC defendants= contention, making
a false report to the police that results in the issuance of criminal
process may support a claim for abuse of process (see Parkin, 78 NY2d
at 530-531; Liss, 96 AD3d at 1592-1593; Light v Light, 64 AD3d 633, 634).
 With regard to the second element, plaintiff sufficiently alleged that
the CMC defendants intended to harm her by demeaning, humiliating, or
defaming her rather than to secure justice for purported criminal conduct.
 With regard to the third element, plaintiff sufficiently alleged that
the CMC defendants were manipulating the process to achieve a collateral
objective, i.e., demeaning, humiliating, and defaming plaintiff in an
attempt to gain an advantage in the sexual harassment lawsuit (see Board
of Educ. of Farmingdale Union Free School Dist. v Farmingdale Classroom
Teachers Assn., Local 1889, AFT AFL-CIO, 38 NY2d 397, 404; Danahy v Meese,
84 AD2d 670, 672). Contrary to the CMC defendants= further contention,
plaintiff=s amended complaint was sufficient to state a cause of action
for abuse of process against CMC as a corporation. Finally, plaintiff
properly pleaded special damages in her amended complaint inasmuch as
legal fees incurred in defending against false criminal charges are
sufficient to sustain a cause of action for abuse of process (see Liss,
96 AD3d at 1593; see also Parkin, 78 NY2d at 530).

     We further conclude that the court erred in dismissing plaintiff=s
second cause of action, for false imprisonment/false arrest, against each
of the CMC defendants, and we therefore further modify the order
accordingly. AWith respect to a cause of action for false arrest or false
imprisonment . . . , the elements are that the 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@ (Burgio v Ince, 79 AD3d 1733, 1734; see Broughton
v State of New York, 37 NY2d 451, 457, cert denied sub nom. Schanbarger
v Kellogg, 423 US 929). Here, plaintiff=s allegations were sufficient
to state a cause of action inasmuch as plaintiff alleged that the CMC
defendants, including CMC acting through Maria as its CEO, gave false
statements to the police with the intent of having plaintiff arrested;
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                                                                CA 13-01447

that plaintiff was conscious of the confinement and did not consent
thereto; and that, as a result of the actions of the CMC defendants, she
was subjected to a warrantless, unprivileged arrest. The CMC defendants
contend in response that they cannot be liable for plaintiff=s arrest
because they merely provided information to the police who thereafter
acted on their own in determining that an arrest was legally justified,
i.e., supported by probable cause (see generally Lowmack v Eckerd Corp.,
303 AD2d 998, 999). We note however, that lack of probable cause is not
an element of the cause of action for false imprisonment/false arrest,
and thus need not be pleaded (see Broughton, 37 NY2d at 457; see also
Quigley v City of Auburn, 267 AD2d 978, 979).

     We agree with the CMC defendants, however, that the court properly
dismissed the fourth cause of action, for malicious prosecution, for
failure to state a cause of action (see CPLR 3211 [a] [7]). A >The elements
of the tort 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= @ (Zetes v Stephens, 108 AD3d 1014, 1015, quoting Broughton,
37 NY2d at 457; see Smith-Hunter v Harvey, 95 NY2d 191, 195). With regard
to the second element, Aany [final] termination of a criminal prosecution,
such that the criminal charges may not be brought again, qualifies as
a favorable termination, so long as the circumstances surrounding the
termination are not inconsistent with the innocence of the accused@
(Cantalino v Danner, 96 NY2d 391, 395, citing Smith-Hunter, 95 NY2d at
199; see Martinez v City of Schenectady, 97 NY2d 78, 84). It is well
settled, however, that any disposition of the criminal action that does
not terminate it, but permits it to be renewed, cannot serve as a foundation
for a malicious prosecution action (see Smith-Hunter, 95 NY2d at 197).
 A dismissal without prejudice qualifies as a final, favorable termination
if the dismissal represents the formal abandonment of the proceedings
by the prosecutor (see id. at 198-199).

     Here, plaintiff alleged in the complaint that the misdemeanor
information was dismissed in Town Court Aas being defective on its face.@
 Plaintiff=s submissions in opposition to the motion to dismiss (see
Gibraltar Steel Corp. v Gibraltar Metal Proc., 19 AD3d 1141, 1142),
however, establish that plaintiff moved to dismiss the misdemeanor
information on the ground that it was insufficient on its face because
it was not supported by any nonhearsay allegations of fact sufficient
to support a conviction (see CPL 170.30 [1] [a]; see also CPL 170.35 [1]
[a]; 100.40 [1] [c]). Town Court dismissed the information without
prejudice to the People to refile because, despite its doubts that the
People would be able to successfully do so, it could not Aforeclose [the
People] from curing whatever defect [the misdemeanor information
contained].@ Inasmuch as the accusatory instrument was ultimately
dismissed without prejudice to refile in order to correct the legal
insufficiency of the allegations therein, we conclude that the dismissal
was not final and thus cannot support a cause of action for malicious
prosecution (see Smith-Hunter, 95 NY2d at 197; MacFawn v Kresler, 88 NY2d
859, 860).
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                                                                CA 13-01447

      Finally, we conclude that the court erred in dismissing plaintiff=s
fifth cause of action, for libel per se, against defendants CMC, Maria,
and Andre, and we therefore further modify the order accordingly. AThe
elements of a cause of action for defamation are a false statement,
published without privilege or authorization to a third party,
constituting fault as judged by, at a minimum, a negligence standard,
and it must either cause special harm or constitute defamation per se@
(Salvatore v Kumar, 45 AD3d 560, 563, lv denied 10 NY3d 703; see generally
Restatement [Second] of Torts ' 558). Making a false statement contained
in a supporting deposition provided to the police constitutes libel on
its face, i.e., libel per se, if it A >tends to expose the plaintiff to
public contempt, ridicule, aversion or disgrace, or [to] induce an evil
opinion of him [or her] in the minds of right-thinking persons= @ (Zetes,
108 AD3d at 1018-1019, quoting Rinaldi v Holt, Rinehart & Winston, 42
NY2d 369, 379, rearg denied 42 NY2d 1015, cert denied 434 US 969). An
allegation that a defendant filed a false report accusing the plaintiff
of a serious crime is sufficient to state a valid cause of action to recover
damages for libel per se (see Light, 64 AD3d at 634; Burdick v Verizon
Communications, 305 AD2d 1030, 1031; see also Geraci v Probst, 15 NY3d
336, 344-345). A[P]roof of special damages is not required for libel
on its face or libel per se@ (Zetes, 108 AD3d at 1019). In addition, A[i]n
an action for libel or slander, the particular words complained of shall
be set forth in the complaint, but their application to the plaintiff
may be stated generally@ (CPLR 3016 [a]). Contrary to the CMC defendants=
contention, the amended complaint sets forth Athe particular words
complained of@ inasmuch as plaintiff attached complete copies of the
supporting depositions to her amended pleading and A[a] copy of any writing
which is attached to a pleading is a part thereof for all purposes@ (CPLR
3014); plaintiff also specifically referenced in her amended complaint
the statements at issue from the supporting depositions. Here,
plaintiff=s allegations of libel per se are legally sufficient. She
alleged that the statements contained in the supporting depositions of
Andre and Maria, who was allegedly acting both individually and as CEO
of CMC, falsely accused her of committing a serious crime of possession
of stolen property (Penal Law ' 165.40; see Epifani v Johnson, 65 AD3d
224, 234; see also Martin v Hayes, 105 AD3d 1291, 1292-1293) or, arguably,
grand larceny in the fourth degree (Penal Law ' 155.30 [1]; see generally
Liberman v Gelstein, 80 NY2d 429, 435); that the statements were published
to the Sheriff=s Office and thereafter filed in Town Court; and that the
CMC defendants made such statements in bad faith, and for the purpose
of humiliating plaintiff and subjecting her to criminal prosecution (see
generally Zetes, 108 AD3d at 1018-1019; Light, 64 AD3d at 634). We also
conclude, however, that plaintiff failed to state a cause of action for
libel per se against Emre because the statements in his supporting
deposition cannot be construed as accusing plaintiff of any crime.




Entered:   August 8, 2014                           Frances E. Cafarell
                                                    Clerk of the Court
