Repair Contractor Arrested on Homeowner’s Fraud Complaint Made in Mandarin

This was originally posted on the SGR Blog.

Was Friend of Customer Who Translated Document Into English Liable For False Arrest?

Selvon Peters sued Xue Zhen Lin and Li Qing Ni for false arrest, malicious prosecution, fraud and intentional infliction of emotional distress. Ni asserted that she merely served as an interpreter for Lin and, as such, could not be held liable for statements made by Lin.

Peters alleged that, on or about March 10, 2017, Lin and Ni falsely stated to the Watervliet Police Department and the Albany County District Attorney’s Office that he had obtained money through fraud and/or false pretenses. The proof submitted by Ni in support of her motion showed that Lin gave a supporting deposition to the Watervliet Police Department on March 10, 2017. Lin wrote her statement in Mandarin Chinese, and Ni translated it into English.

Lin’s deposition, as translated by Ni, stated that on November 17, 2016, Lin contracted with Peters to perform home repair work in exchange for the sum of $80,000 to be paid in four installments. Lin made the first payment of $35,000 on November 7, 2016, and Peters soon requested the second payment of $25,000, falsely claiming that he had finished the first phase of the work, and needed the funds to purchase materials for the second phase. However, after receiving the second payment on December 3, 2016, Peters failed to perform any further work on Lin’s house, and he would not return her calls. Peters then called Lin on January 17, 2017 and told her to make the third payment of $10,000, at which point Lin “realized… that he was scamming [her],” and she “didn’t give him the money.” From that point, Lin could not get a hold of Peters, who had “disappeared.”

Peters’ complaint alleged that the “false statements” led to his arrest and prosecution, causing “material losses in [his] income, personal humiliation, loss of liberty, fear and anxiety for the prospect of incarceration… and otherwise caused significant pain and suffering to [him].” The criminal charges against Peters were dismissed on October 24, 2017.

Ni answered the complaint, denied the pertinent allegations, and asserted that the complaint failed to state a cause of action against her because she acted only as an interpreter for Lin, and the statements she gave to law enforcement were merely a literal translation of the statements made by Lin.

Ni moved for summary judgment, arguing that she never made a statement on her own behalf or complained about Peters in her personal capacity; rather, she simply provided uncompensated translation services to an acquaintance, Lin. Ni also sought the imposition of sanctions, alleging frivolous conduct on Peters’ part.

Ni supported her motion for summary judgment with her own affidavit, the deposition testimony of the parties, and documentary evidence.

In her affidavit, Ni averred that she “merely provided a free service for an acquaintance… Lin, to translate as close to verbatim as I could translate Mandarin Chinese into American English, so she could be understood by the Watervliet… Police Department with her complaint about [Peters]”. Ni further attested that she “never made a statement and never complained about…Peters on [her] behalf as [she] ha[d] no personal complaint of or against him,” and that she ha[d] “never been contacted by the Watervliet… Police Department, the Albany County District Attorney’s Office or any other… agency concerning this or any other matter.”

Ni also submitted the parties’ deposition testimony. That proof generally supported Ni’s position that she acted only as an interpreter for Lin, an acquaintance who did not speak English, with respect to (1) Lin’s interactions with Peters concerning the repair of Lin’s home, and (2) Lin’s communication with the Watervliet Police Department regarding Peters.

The documentary exhibits submitted in support of the motion included the translation of Lin’s supporting deposition prepared by Ni, which was provided to the Watervliet Police Department. Those documents similarly indicated that Ni acted solely in the capacity of Lin’s interpreter.

Finally, Ni submitted proof that she performed the translation of Lin’s Mandarin Chinese into American English in a manner consistent with the standards applicable to a certified interpreter. To that end, Ni submitted a 2015-16 New York State Unified Court System Orientation Guide For Court Interpreter, which required that a speaker’s responses be interpreted exactly as spoken — i.e., in first person and not corrected in any way. Thus, Ni maintained, the written statements she made regarding Peters to the Watervliet Police Department merely were the literal translation of Lin’s statements.

In opposition to Ni’s motion, Peters did not submit any proof of his own, instead relying on the proof submitted by Ni. Peters argued that Ni was not a court interpreter, and the record showed Ni’s role was not limited to that of interpreter. With regard to the latter contention, Peters asserted that: Ni was “always” present “throughout the project”; Ni “regularly” spoke with Peters regarding the work, with and without Lin present; Ni went to the work site and observed the progress of the work; and, when the project was not performed to Lin’s satisfaction, Ni told Lin to get the police to help her and then accompanied Lin to the police station. But the Court found that Peters’ arguments were based on a mischaracterization of the parties’ testimony and were otherwise unsupported by the record.

Notably, Peters himself described Ni as “the go between. She was the one who speaks mostly English. She was the one who as I spoke she translated back to [Lin]”. Peters was then asked a follow-up question: “So she was a translator?”  His response was: “Yes.”

Although Ni was “always” with Lin during Lin’s in-person interactions with Peters, there was nothing in the record showing that Ni had any interest or involvement in the matter other than as an interpreter and intermediary. Peters testified that Ni translated “throughout the project,” and both he and Lin “relied on (Ni) to communicate.” Ni told Peters in mid-February 2017 that she “no longer wanted to be involved as a translator.” Peters stated that he never received payment from Ni on behalf of Lin; rather, “Ms. Lin is the one I went for the payment. Ms. Ni is who translated what I wanted from her.” Peters denied having any knowledge of whether “Ni has a vested interest in (Lin’s) house.”

Ni communicated with Peters by telephone and text messages with or without Lin’s presence or involvement. But the uncontroverted proof showed that she merely translated and/or relayed information on Lin’s behalf. Ni would “always speak to Ms. Lin before sending (a) text message” to Peters. That is all I do for the translator.”

Further, as acknowledged by Peters, Lin’s written statement to the Watervliet Police Department was written in Mandarin Chinese. The English translation of the statement expressly stated that Ni is “the interpreter for this letter for Xue Zhen Lin,” and went on to translate Lin’s statements in first person form. In this regard, Peters failed to submit any proof indicating that Ni’s translation was false, inaccurate, or reflected her own personal views or statements.

Indeed, the Court Interpreter Guide, submitted by Ni, commanded that “words should be interpreted exactly as spoken by the speaker,” even if the speaker uses incorrect grammar or improper vocabulary, and “[t]he statements made by speakers are always kept in first person.” Although Ni was not a court interpreter, and was not provided as one by the police department, the Court Interpreter Guide showed that Ni rendered translation services in accordance with accepted standards, and the allegedly false and damaging first-person statements made to the police were attributable to Lin, not Ni.

By providing translation assistance to Lin and communicating with Peters on Lin’s behalf and at her request, Ni, at most, acted as an agent for a disclosed principal. There was no evidentiary basis upon which to conclude that Ni committed her own affirmative/independent act of misconduct, or that Lin intended to substitute or add her personal liability for, or to, that of Lin.

Finally, the Court observed that all of the causes of action alleged by Peters required proof of malicious or intentional misconduct on Ni’s part. Even viewing the record proof in a light most favorable to Peters, the Court found that there simply was no basis to conclude that Ni acted as anything other than a disinterested interpreter.

The Court concluded that Ni made an initial showing of entitlement to judgment as a matter of law and that Peters failed to raise a triable issue of fact in opposition. Ni’ s motion for summary judgment dismissing the complaint was granted. However, the Court declined, in the exercise of discretion, Ni’s request to impose sanctions upon Peters and/or his counsel.

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