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THE COMPLAINT STATED CAUSES OF ACTION FOR ASSAULT, BATTERY AND VIOLATION OF 42 USC 1983 AGAINST POLICE OFFICERS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint stated causes of action against police officers for assault, battery and violation of 42 USC 1983:

The allegations in the complaint, as amplified by the notice of claim, which must be liberally construed when determining a CPLR 3211(a)(7) motion … sufficiently set forth a claim for assault and battery. Plaintiff alleged that he was assaulted and battered by police during his arrest and suffered injuries that required hospital treatment. Plaintiff specified the location of the assault and stated that defendants committed the assault and battery knowingly, that the arrest was without probable cause and that he was not ultimately charged with a crime. Moreover, in the notice of claim, plaintiff alleged that he was “grabbed, had his arms twisted and forcefully handcuffed,” that he was physically abused and that he did not resist arrest.

“To plead a cause of action to recover damages for assault, a plaintiff must allege intentional physical conduct placing the plaintiff in imminent apprehension of harmful contact” … . “A valid claim for battery exists where a person intentionally touches another without that person’s consent” … .

… [A] party may allege assault and battery as the basis for a suit under 42 USC § 1983 … . Corcoran v City of New York, 2020 NY Slip Op 05133, First Dept 9-29-20

 

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