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ASSAULT AND BATTERY CAUSES OF ACTION AGAINST THE POLICE DO NOT REQUIRE A SPECIAL DUTY OWED TO PLAINTIFF (FIRST DEPT).

The First Department, reversing Supreme Court, determined the assault and battery causes of action against the city did not require demonstration of a special duty owed plaintiffs by the police:

Plaintiff’s … causes of action sounded in assault and battery, and not negligence. Therefore, the question was not whether the police owed plaintiff a special duty … , but whether the force used against her was more than necessary under the circumstances … . Plaintiff’s deposition testimony concerning the police officers’ conduct toward her supported the elements of a claim for assault and battery … . While defendants did not specifically recall interacting with plaintiff, they described a situation where they were disbursing a large crowd that was gathering around three different fights going on at the same time. Defendants do not dispute that plaintiff may have been pushed or shoved during the course of that incident. “Because of its intensely factual nature, the question of whether the use of force was reasonable under the circumstances is generally best left for a jury to decide” .. . Butler v City of New York, 2021 NY Slip Op 05810, First Dept 10-26-21

 

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ATTORNEY’S FEES RECOVERABLE UNDER AN ACCOUNT-STATED THEORY DESPITE TERMINATION... PLAINTIFF SHOULD NOT HAVE BEEN ALLOWED TO CONFORM THE PLEADINGS TO THE PROOF...