Process Server’s Assault/Battery and False Imprisonment Claims Continue

No one likes/wants to be sued. Process servers – people hired by attorneys to deliver litigation papers to a named defendant – are, therefore, not exactly “welcome” when they attempt to serve papers on a defendant.

A recent case, Galtieri v. Uptown Communications & Electric, Inc. and Jonathan Smokler, Sup. Ct. Qns. Cty. 19589/2012, illustrates the dangers associated with the important work that process servers do.

In that case, plaintiff, a process server, asserted claims for assault, battery, false imprisonment, and defamation. Here are the facts, as alleged by plaintiff (and as summarized by the court):

[O]n December 15, 2011, plaintiff entered the premises of Uptown Communications & Electric, Inc. located at 55-40 44th Street, Maspeth, Queens, in order to serve Jonathan Smokler, the president of the company with service of process. Galtieri alleges that upon entering the warehouse, she proceeded to Smokler’s office where she found Smokler at his desk. She alleges that Smokler told her that she was trespassing. She touched his hand with the papers, placed the papers on his desk, and announced that he had been served. Smokler then demanded that she take the papers and leave the premises. He allegedly told her she could not leave unless she took the papers with her. She claims he blocked her from leaving his office preventing her from exiting the property through the warehouse. When she attempted to leave the warehouse he continued to request that she take the papers, blocked her again from leaving and bumped her with his stomach. When she managed to get around him to leave the premises, Smokler stated he was calling the police and ordered her not to move. At that point she ran out of the warehouse and entered a waiting car operated by her colleague. Smokler then jumped in front of the car and asserted that plaintiff and her colleague would have to drive over him in order to leave the area. The complaint states that a company employee then threw the papers back into the car. Smokler continued to stand in front of the car and instructed an employee to close the gates to the parking lot so plaintiff’s vehicle could not leave.

Defendant’s version of events differs. He claims, for example, that plaintiff “entered the premises without consent, entered his private offices without consent, brandished a metal rod, raised it as a weapon, made harmful and offensive bodily contact with him, and struck him with her arm while serving the papers.”

The court denied defendant’s motion for summary judgment on plaintiff’s claims for assault and battery, reasoning:

Here the evidence submitted clearly demonstrates that triable issues of fact exist as to whether the defendant, Mr. Smokler intentionally pushed the plaintiff as he was following her out of the building. In light of plaintiff’s testimony that she was intentionally bumped and intimidated by the defendant as well as her testimony regarding his berating, offensive and aggressive conduct toward her, including following her out of the office and then preventing her from leaving, it is clear that triable issues of fact exist as to the causes of action for assault and battery. Defendant failed to meet his burden on the motion as to the conflicting deposition testimony he submitted regarding the alleged incident in his office and the differing versions as to which party bumped the other, demonstrates the existence of a triable issue as to whether plaintiff was subjected to intentional offensive contact.

The court also denied defendant’s motion for summary judgment as to plaintiff’s false imprisonment cause of action:

[T]he evidence submitted on the motion raises issues of fact and credibility as to whether the defendant intended to confine the plaintiff in the warehouse when he blocked and prevented her from leaving until she took the papers back and when he stood in front of her vehicle stating she would have to run him over to leave the parking lot. Each party testified to differing versions of the incident. Although Defendant argues that plaintiff was free to leave the office at all times, there is a question of fact as to whether the defendant intended to confine her in the building and parking lot and whether he intentionally prevented her from leaving the premises.

The court dismissed plaintiff’s defamation cause of action, however, on the ground that the alleged defamatory statements – Smokler’s statement to the police that plaintiff trespassed and threw papers at him – were protected by a qualified privilege, since “defendant was obligated to report his version of what happened during the incident to the police.”

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