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DISMISSAL OF INTENTIONAL TORT CAUSES OF ACTION PRECLUDED SUBSEQUENT ACTION SOUNDING IN NEGLIGENCE, NO NEGLIGENT ASSAULT IN NEW YORK.

The Second Department noted that New York does not recognize an action for negligent assault. Plaintiff’s intentional tort causes stemming from an arrest by a security guard were dismissed as time-barred. Plaintiff then brought suit under a negligence theory:

“[U]nder New York’s transactional analysis approach to res judicata, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy'” … . Here, the purported negligence cause of action asserted in the plaintiff’s second action arose from the same operative facts as the dismissed intentional tort claims, and could have been raised in the first action. Accordingly, in view of the previous litigation between the parties, the Supreme Court properly directed the dismissal of that cause of action on the ground that it was barred by the doctrine of res judicata … .

Furthermore, the Supreme Court properly dismissed the negligence cause of action on the additional ground that the allegations in support of it failed to state a cause of action. The allegations that Doe physically injured the plaintiff while restraining and arresting him did not transform the plaintiff’s time-barred cause of action alleging assault into a timely cause of action alleging negligence, as New York does not recognize a cause of action to recover for negligent assault … . Johnson v City of New York, 2017 NY Slip Op 02410, 2nd Dept 3-29-17

 

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