This action for false imprisonment was commenced by a civilian employee of the
Department of Correctional Services (DOCS) who alleges that she was wrongfully
detained for questioning after her regular work hours. The Court holds that
claimant has failed to establish the elements of false imprisonment by a
preponderance of the credible evidence.
On February 26, 1999, claimant was employed as a teacher at the Bare Hill
Correctional Facility in Malone, New York. Claimant's classroom was located in
the annex at the back of the facility. Her normal work hours were from 11:00
A.M. to 7:00 P.M. but on this particular day her work hours were from 9:30 A.M.
to 8:00 P.M. There was a Correction Officer located outside her classroom,
sitting at an elevated desk, who could see into the classroom through a window.
According to claimant, on this day a graduation ceremony was conducted for
inmates who completed the Compadre Helper Program, an inmate peer counseling
program conducted in Spanish. The graduation ceremony commenced between 3:30
P.M. and 4:00 P.M. in claimant's classroom and lasted for two hours. One inmate
came into the classroom late for the ceremony. The Correction Officer located
outside the classroom, Correction Officer Fleury, allegedly saw the inmate
approach the claimant after he entered the classroom and kiss her on the right
cheek. Claimant faced the window through which the Correction Officer could see
into the room. Claimant maintains that the inmate did not kiss her but rather
approached her desk and shook her hand.
According to claimant, after the graduation ceremony concluded between 5:30
P.M. and 6:00 P.M., she left her classroom to go home. It took fifteen minutes
to walk through four gates of the facility to reach the main lobby. According
to Lieutenant Goff, the Assistant Watch Commander that evening, as claimant
entered the lobby he told her that she was not to leave the facility until she
spoke to Captain Gonyea, who was the main officer in charge of the facility that
day. According to the lobby officer that evening, Sergeant Brian Johnston,
claimant responded "okay" and sat down in the lobby area and read a book that
she was carrying with her.
Claimant testified, however, that when she entered the lobby she attempted to
leave by the front and side doors of the lobby but the doors were locked.
Claimant testified throughout the course of the trial that she told the officer
in the lobby and Captain Gonyea that she wanted to go home. The Court finds,
however, that her testimony in this regard was vague and imprecise as to whom
she spoke with in the lobby and what was said to her by the officers that
evening. The Court accepts, therefore, the testimony of Sergeant Johnston that
claimant sat quietly and read until she was able to speak with Captain
Lieutenant Goff told Captain Gonyea that claimant was in the lobby waiting to
speak with him. After concluding a phone call, Captain Gonyea went into the
lobby to talk with claimant. He told her that he wanted to talk to her about an
incident but he thought she would be more comfortable talking to Carol Leary,
the Acting Superintendent and Deputy Superintendent for Administrative Services,
who had left for the day but was on her way back to the facility to talk to
claimant. According to claimant, she inquired of Captain Gonyea as to why she
was being detained and informed him that she wanted to go home. He told her
that she had to wait for the Deputy Superintendent but did not tell her why she
had to do so. She testified that she did not inquire any further and sat
Captain Gonyea returned to his office. Claimant used the pay phone in the main
lobby. According to Sergeant Johnston, claimant checked the front door to the
facility at this time and it was locked. This was the only testimony from any
of the defendant's witnesses that claimant checked the doors and found them to
be locked. Claimant then went into Captain Gonyea's office and informed him that
she wanted to go to her car but she was locked in the facility. This was the
first time that Captain Gonyea learned that the main door to the facility had
According to Captain Gonyea, at approximately 6:50 P.M. he and claimant
proceeded to the lobby to allow her to go to her car to drop off her things.
The Captain told the officer on duty there to open the door to the facility
because claimant wanted to go to her car. Captain Gonyea testified that he would
not have prevented her from driving away if she had attempted to do so. At that
same time the Acting Superintendent was returning to the facility to talk to the
claimant. As the Acting Superintendent walked into the lobby, she asked claimant
to come to her office to talk about the incident. After briefly speaking to
Captain Gonyea, Acting Superintendent Leary spoke to the claimant for ten
minutes. Contrary to claimant's testimony at the trial, the Acting
Superintendent testified that claimant told her that an inmate became emotional
at the graduation ceremony and kissed claimant on the cheek as a thank you.
Since the Acting Superintendent had heard that claimant did not respond to the
kiss, she thought that the incident was not serious enough to warrant claimant
staying later to do a report. When claimant was asked about her recollection of
this conversation on cross-examination, she stated that she did not recall the
details of what had been discussed.
Although claimant testified that she finally left the facility at 8:30 P.M.,
according to the testimony of the Acting Superintendent and Captain Gonyea, the
time was closer to 7:15 P.M. to 7:30 P.M. Claimant recorded on her time card
for that day (Exhibit A) that she worked until 8:00 P.M. Captain Gonyea
testified that claimant left the facility after her meeting with the Acting
In order to sustain a cause of action for the tort of false imprisonment, the
claimant must prove: (1) the defendant intended to confine her, (2) the claimant
was conscious of the confinement, (3) the claimant did not consent to the
confinement, and (4) the confinement was not otherwise privileged (
Broughton v State of New York
, 37 NY2d 451, citing
2d, Torts § 35). In the present case, claimant failed to prove any
elements of this cause of action. Claimant must make a prima facie showing of
confinement or the cause of action must be dismissed (Elson v Consolidated
Edison Co. of N.Y.
, 226 AD2d 288).
As for the first element of this tort, claimant failed to show that the
defendant either: (a) confined or intended to confine the claimant, or (b)
affirmatively procured or instigated the claimant's arrest (
King v Crossland Sav. Bank
, 111 F3d 251 [2d Cir 1997], citing
Carrington v City of New York
, 201 AD2d 525, 526-527, Williams v State
of New York
, 90 AD2d 861, 862). Summoning an employee into an interview in
familiar surroundings in an employer's office does not prove an intent to
confine (Lee v Bankers Trust Company
, 1998 WL 107119 [SDNY 1998],
citing Malanga v Sears, Roebuck & Co.
, 109 AD2d 1054,
65 NY2d 1009). In Lee
), an employee who was
questioned for five hours by the defendant's security personnel was found not to
be falsely imprisoned. In Malanga
), the plaintiff was a
part-time employee of the defendant who was questioned during regular business
hours in familiar surroundings about the loss of merchandise. The Court held
that she was not falsely imprisoned.
In the case at bar, the actions of defendant's employees do not indicate an
intent to confine claimant. Claimant was told that Captain Gonyea and Acting
Deputy Superintendent Leary wanted to speak with her before she left for the
evening. She was questioned in familiar surroundings very close in time to her
regular work hours. Although it was claimant's practice to leave after her work
was done for the day, her normal work hours were from 11:00 A.M. to 7:00 P.M.
When the Acting Superintendent arrived, claimant was questioned for ten minutes
in the Acting Superintendent's office close to the time that claimant's normal
work day would end. The defendant's actions in the instant case were not
nearly as severe as the actions of the employers in
), which were found not
to rise to the level of false imprisonment. As for the locked doors, Captain
Gonyea, the main officer in charge of the facility for the day, did not know
the doors to the facility were locked until claimant informed him later that
Counsel for claimant argued that the memorandum should be admitted as an
exception to the hearsay exclusion as an admission. Counsel for the defendant
argued that it was hearsay and did not meet the requirements for admission as a
business record's exception to the hearsay rule. The Court finds that this
document is an admission and therefore is not excluded from the record. "[t]he
hearsay statement of an agent is admissible against his employer under the
admissions exception to the hearsay rule only if the making of the statement is
an activity within the scope of his authority" (Loschiavo v Port Auth. of
N.Y. & N.J., 58 NY2d 1040).The agent must have the authority to speak on
behalf of the principal (Prince, Richardson on Evidence, 11th ed., §
8-208). In Navedo v 250 Willis Ave. Supermarket (290 AD2d 246), the
alleged post-accident statements of a store manager in a slip and fall action
were held admissible under the principal/agent exception. In the instant case,
the Court finds that the Superintendent had the authority to speak for the Bare
Hill Correctional Facility and such statements were made during a labor
management meeting, clearly within the scope of Mr. Lacy's duties. However, the
Court also finds that the memorandum, signed by the Superintendent and the PEF
President, reflected an admission that it was not the policy of the
correctional facility to lock its doors. The fact that an employee may have
locked the doors at some point that evening does not constitute an abandonment
of the facility's policy.
As for the second element, whether claimant was conscious of the confinement,
the Court believes that claimant, at some point that evening before Acting
Superintendent Leary arrived, checked the doors and found them to be locked.
The fact that the doors were locked does not necessarily mean that there was an
intent to confine her, or for that matter, that claimant was truly confined.
When she told Captain Gonyea that the doors were locked and that she wanted to
go to her car, the Captain told the lobby officer to open the door to the
facility and allowed her to go outside.
Arrington v Liz Claiborne, Inc.
(260 AD2d 267), a case in which the
plaintiffs were accused of falsifying their time cards and required to meet with
security personnel to discuss the matter, the Court held that the first and
second elements of this tort were not met just because the plaintiffs "felt"
that they were not free to leave because they were told the police would be
called if they did not cooperate and sign written agreements. "Plaintiffs'
fears that they would be arrested or fired did not constitute detaining force
necessary to establish the tort of false imprisonment" (id., citing Malanga v
Sears, Roebuck & Co.
, 109 AD2d 1054, 1055, supra
to the plaintiffs in Arrington
, claimant may have felt
that she was not free to leave even though she was not threatened, but such a
feeling is not the same thing as knowing one cannot
Claimant's testimony on this point was vague and inconsistent. She testified
that at one point Captain Gonyea blocked the door to prevent her from leaving,
but this statement was simply not credible in the light of other witnesses'
testimony and her own account of events. Her time line of events was also
confusing. The credible testimony suggests that at some point claimant tested
the doors and found them to be locked, that she went to Captain Gonyea and asked
that they be opened, and that Captain Gonyea agreed that she could go to her
car. Consequently, claimant has not met the burden of proving that she was
conscious of her confinement.
It has been held that the third element of this tort, that a claimant did not
consent to the confinement, was not satisfied when a plaintiff voluntarily
accompanied a defendant's employees to a security office to discuss the
potential criminality arising from the tender of an alleged counterfeit payment
for admission tickets (
Farina v Saratoga Harness Racing Assn.
, 20 AD2d 750). The Court finds in
the present case that claimant consented to remain to speak with Acting
Superintendent Leary thus failing to establish the third element of this tort.
According to Sergeant Brian Johnston, the lobby officer that day, when he told
claimant not to leave the facility until she spoke to Captain Gonyea, claimant
responded "okay" and sat down in the lobby lounge and read a book.
Regarding the fourth element, that the confinement was not privileged, the
burden of proving privilege is upon the person or entity charged with the
commission of the tort (
Gonzalez v State of New York
, 110 AD2d 810, citing Hollender v
Trump Vil. Coop
., 58 NY2d 420, 425). Privilege or justification becomes a
question of fact when the defendant has met the burden of pleading and producing
evidence to support this affirmative defense (see
, Simmonds v Abraham
& Straus Dept. Store
, 118 AD2d 553; see also Parvi v City of
, 41 NY2d 553, citing Broughton v State of New York
37 NY2d 451, supra
; Woodson v New York City Housing Auth.
, 10 NY2d
In the instant case, the defendant pleaded privilege as its fifth affirmative
. At trial, defendant introduced as Exhibit D, the 1995-1999 Professional,
Scientific and Technical Services Unit Agreement between the State of New York
and PEF. Article 33 of this agreement pertains to the discipline of employees.
Section 33.3 (b) of this article distinguishes the difference between the
"interrogation" of an employee and the "routine questioning" of an