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ALTHOUGH DEFENDANT THEATER MANAGER WAS NOT A SECURITY GUARD, HIS RESPONSIBILITIES INCLUDED DEALING WITH UNRULY PATRONS AND KEEPING THE PREMISES SAFE; THERE WAS A QUESTION OF FACT WHETHER HE WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE THREATENED A PATRON WITH A PELLET GUN; THEREBY RAISING A QUESTION OF FACT WHETHER THE THEATER WAS LIABLE FOR THE MANAGER’S ACTIONS UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the defendant movie- theater manager, Adams, may have been acting within the scope of his employment by the theater, AMC, when he threatened plaintiff, a theater patron, with a pellet gun. Therefore AMC’s motion for summary judgment should not have been granted:

… [T]he general manager of the theater, Adams’s supervisor, stated, during his deposition, that managers, like Adams, have security-related responsibilities, including ensuring that the theater is safe for customers and dealing with unruly patrons. And the plaintiff, during his deposition, stated that he believed Adams was a security guard.

When a business employs security guards or bouncers to maintain order, the use of physical force may be within the scope of their employment … . Adams did not hold either of these job titles, but his responsibilities included maintaining order at the theater, ensuring the safety of customers and staff, and, if necessary, facilitating the removal from the theater of “disruptive or potentially violent” customers. The accomplishment of these ends by means prohibited by the AMC defendants’ policy was not necessarily unforeseeable. … Unquestionably, Adams’s response to the plaintiff and his friends was “in poor judgment” …  and contrary to the AMC defendants’ policy, but “this in itself does not absolve [the AMC] defendants of liability for his acts” … . Norwood v Simon Prop. Group, Inc., 2021 NY Slip Op 07006, Second Dept 12-15-21

 

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PLAINTIFF STATED A CAUSE OF ACTION FOR “GENDER-BIASED VERBAL ASSAULT, BATTERY AND HARASSMENT, CIVIL RIGHTS LAW 79-N” AGAINST HER FORMER ATTORNEY; THE THREE-YEAR STATUTE OF LIMITATIONS PURSUANT TO CPLR 214(2) APPLIES (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark addressing several issues not summarized here, determined the complaint stated a cause of action for “gender-biased verbal assault, battery and harassment, Civil Rights Law 79-n” and the three-year statute of limitations applied to that cause of action. The lawsuit was brought by a former client against her former attorney, Benjamin:

In her third cause of action, labeled “Gender-Biased Verbal Assault, Battery and Harassment, Civil Rights Law § 79-n,” plaintiff alleges that Benjamin repeatedly subjected her to “cruel, unprovoked and unjustified verbal abuse, assault, battery and harassment,” that such conduct was “motivated, at least in part, by” Benjamin’s bias toward women, that Benjamin “regularly and consistently conducts himself in the same or similar manner toward” women and that plaintiff has suffered, among other things, physical harm as a result of Benjamin’s bias-related conduct. Although plaintiff does not specifically detail Benjamin’s bias-related conduct within the third cause of action, the facts alleged earlier in the complaint, which are incorporated by reference under the third cause of action, are replete with allegations that Benjamin forcibly subjected plaintiff to nonconsensual sexual contact, including one occasion when Benjamin forced plaintiff to perform oral sex on him and at least two occasions when he forcibly touched plaintiff’s genitals. In our view, the allegations of forcible, nonconsensual contact, together with plaintiff’s allegation that such conduct was motivated by Benjamin’s gender bias, could, if proven, demonstrate the bias-related violence or intimidation required to recover under Civil Rights Law § 79-n … . * * *

… [A]lthough plaintiff’s third cause of action is akin to common-law assault and battery claims, plaintiff’s claim of bias-related violence or intimidation would not exist but for Civil Rights Law § 79-n (2). To recover under common-law assault and battery causes of action, plaintiff would simply need to prove that defendants intentionally placed her “in apprehension of imminent harmful or offensive contact” and “intentionally engage[d] in offensive bodily contact without [her] consent” … . In contrast, to recover for Benjamin’s alleged forcible, nonconsensual sexual contact under Civil Rights Law § 79-n (2), plaintiff has to demonstrate that Benjamin intentionally selected her for harm or intentionally caused her physical injury in whole or in substantial part because of a belief or perception regarding her gender and that there was “actual or imminent physical harm” as a result of the gender bias-related violence or intimidation … . Given the substantive differences between claims asserted under Civil Rights Law § 79-n and common-law assault and battery claims, we are convinced that Civil Rights Law § 79-n (2) creates liability that would not exist but for the statute and that therefore the three-year statute of limitations period in CPLR 214 (2) applies to plaintiff’s third cause of action … . A.M.P. v Benjamin, 2021 NY Slip Op 06589, Third Dept 11-24-21

 

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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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CLAIMANT-INMATE’S ACTION AGAINST THE STATE ALLEGING HE WAS BEATEN BY CORRECTIONS OFFICERS SHOULD NOT HAVE BEEN DISMISSED; THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE OFFICERS WERE ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT AT THE TIME OF THE BEATING (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, reversing the Court of Claims, over a two-justice dissent, determined the claimant-inmate’s action alleging claimant was beaten by corrections officers after lodging a complaint against one of the officers (Poupore) should not have been dismissed. The Court of Claims ruled the state could not be liable for the beating because the officers were not acting within the scope of their employment:

… [T]he undisputed evidence demonstrated that the incident took place at Clinton Correctional Facility, that the correction officers involved were on duty and that claimant’s encounter with Poupore by the stairway was occasioned by claimant having been called downstairs for an interview with Wood [Poupre’s supervisor] … . … [T]estimony from defendant’s witnesses demonstrated that pat frisks are routinely conducted prior to inmate interviews and that Poupore was instructed to pat frisk claimant prior to his interview. Accepting claimant’s version of events as true, Poupore struck claimant during the course of that employer-sanctioned pat frisk, which then led to the involvement of additional correction officers. If claimant’s account is credited, Poupore’s intentional tortious act of punching claimant in the head was not so divorced from the performance of his pat-frisk duties so as to preclude a finding that he was acting within the scope of employment. Nor can we conclude as a matter of law that the ensuing altercation was wholly outside the scope of the additional correction officers’ duties. Galloway v State of N.Y., 2021 NY Slip Op 02855, Third Dept 5-6-21

 

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THE INFANCY TOLL OF THE STATUTE OF LIMITATIONS IN CPLR 208 APPLIES TO A WRONGFUL DEATH ACTION WHERE THE SOLE DISTUBUTEES ARE INFANTS; THE TOLL, HOWEVER, DOES NOT APPLY TO A RELATED ASSAULT AND BATTERY ACTION WHICH IS PERSONAL TO THE DECEDENT (FRIST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, determined the infancy toll of the statute of limitations in CPLR 208 applies where the unmarried father of two children dies intestate. The statute of limitations for the ensuing wrongful death action is tolled until the appointment of a guardian of the children’s property. Father was involved in an altercation with a defendant, suffered fatal injuries and died later that day, September 6, 2012. Plaintiffs, the mothers of the two children, were each appointed guardians of the property of their children in 2015. That is when the statute began running on the wrongful death action, rendering the 2016 complaint timely. A wrongful death action directly compensates the distributees, here the children. The assault and battery action, by contrast, is personal to the decedent. Therefore the infancy toll does not apply to the assault and battery cause of action. The First Department explicitly overruled a decision relied upon by the defendants, Ortiz v Hertz Corp., 212 AD2d 374 (1st Dept 1995). (The opinion is comprehensive and can not be fairly summarized here.):

Today we clarify that Ortiz is not good law, because it was based on an incorrect application and interpretation of Hernandez. Therefore, pursuant to the precedent established in Hernandez [78 NY2d 687] … we hold that when the sole distributees of a decedent’s estate are infants, the toll of CPLR 208 applies to a wrongful death claim “until the earliest moment there is a personal representative or potential personal representative who can bring the action whether by appointment of a guardian [of the property of the infant distributee] or majority of [a] distributee, whichever occurs first” … . Machado v Gulf Oil, L.P., 2021 NY Slip Op 01849, First Dept 3-25-21

 

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THE NYPD IS A DEPARTMENT OF THE CITY AND CANNOT BE SEPARATELY SUED; THE 42 USC 1983 CIVIL RIGHTS VIOLATION CAUSE OF ACTION WAS NOT SUPPORTED BY SUFFICIENT ALLEGATIONS OF AN UNCONSTITUTIONAL CITY CUSTOM OR POLICY; THE OTHER CAUSES OF ACTION AGAINST THE CITY FALL BECAUSE THERE WAS PROBABLE CAUSE FOR PLAINTIFF’S ARREST AND THE FORCE USED BY THE POLICE WAS NOT EXCESSIVE UNDER THE CIRCUMSTANCES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the 42 USC 1983 violation-of-civil rights, negligence, assault and battery, excessive force, false arrest and false imprisonment causes of action against the New York Police Department (NYPD) and New York City (City) should have been dismissed. Plaintiff was shot when, in the midst of a psychotic episode, she approached the police with a knife. She was indicted, tried and found not responsible by reason of mental disease or defect. The court noted that the NYPD is a department of the City and cannot be sued separately. The court also noted the 1983 action against the City failed to state a cause action because no city policy or custom was identified as violating plaintiff’s constitutional rights:

To hold a municipality liable under 42 USC § 1983 for the conduct of employees below the policymaking level, a plaintiff must show that the violation of his or her constitutional rights resulted from a municipal custom or policy … . Here, “[a]lthough the complaint alleged as a legal conclusion that the defendants engaged in conduct pursuant to a policy or custom which deprived the plaintiff of certain constitutional rights, it was wholly unsupported by any allegations of fact identifying the nature of that conduct or the policy or custom which the conduct purportedly advanced” … . * * *

The Supreme Court also should have granted that branch of the defendants’ motion which was for summary judgment dismissing the false arrest and false imprisonment causes of action insofar as asserted against the City. The existence of probable cause constitutes a complete defense to a cause of action alleging false arrest and false imprisonment … , including causes of action asserted pursuant to 42 USC § 1983 to recover damages for the deprivation of Fourth Amendment rights under color of state law … . Brown v City of New York, 2021 NY Slip Op 01743, Second Dept 3-24-21

 

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PLAINTIFF’S SIGNING A CONSENT FORM PRIOR TO SURGERY DID NOT REQUIRE DISMISSAL OF THE LACK OF INFORMED CONSENT CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical malpractice, lack of informed consent and battery causes of action should not have been dismissed. Plaintiff alleged defendant doctor operated on the wrong site. Defendant testified she removed a cyst from plaintiff’s left leg and plaintiff alleged defendant should have removed an abscess. The court noted that plaintiff’s signing a consent form did not require dismissal of the lack of informed consent cause of action:

As to the lack of informed consent cause of action, the deposition testimony of the plaintiff and the defendant and the generic consent form signed by the plaintiff presented triable issues of fact as to whether the defendant informed the plaintiff about the procedure, the alternatives thereto, and the reasonably foreseeable risks and benefits of the proposed treatment and the alternatives … . “[T]he fact that the plaintiff signed a consent form does not establish [the defendant’s] entitlement to judgment as a matter of law” where, as here, the form was generic, and beyond a barebones handwritten notation of the areas of the body, “Left Bartholin/Left Inguinal Abscess,” “did not contain any details about the operation” … . The consent form does not even indicate the procedure to be performed, but merely lists an area of the body, “Left Bartholin,” and a condition, “Left Inguinal Abscess.” Preciado v Ravins, 2021 NY Slip Op 00441, Second Dept 1-27-21

 

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SOCIAL SERVICES LAW ARTICLE 11 DOES NOT CREATE A PRIVATE RIGHT OF ACTION FOR THE INAPPROPRIATE USE OF PHYSICAL RESTRAINTS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Leventhal, determined the Social Services Law did not create a private right of action for the inappropriate use of physical restraints. The complaint alleged infant plaintiff, a person with special needs, was injured by the hospital defendants:

[The] causes of action alleged assault, battery, false imprisonment, negligent hiring, supervision, and retention, violation of a section of Social Services Law article 11, violation of Civil Rights Law § 79-n, and negligence. The two causes of action alleging violation of Social Services Law article 11 were the fifth and sixth causes of action. In these causes of action, the plaintiffs alleged that the defendants committed physical abuse and deliberate inappropriate use of physical restraints as defined in Social Services Law § 493(4)(b). * * *

A legislative intent to create a private right of action for alleged violation of article 11 of the Social Services Law is not fairly implied in these statutory provisions and their legislative history. Finding such a private right of action would be inconsistent with the legislative scheme. The Protection of People with Special Needs Act, generally, and article 11 of the Social Services Law, specifically, “already contain[ ] substantial enforcement mechanisms”… . These mechanisms in the Act include the creation of the Justice Center, the “central agency responsible for managing and overseeing the incident reporting system, and for imposing or delegating corrective action” … . These mechanisms in article 11 include the maintenance of a statewide vulnerable persons’ central register to accept, investigate, and respond to allegations of abuse or neglect; the delineation of possible findings and consequences in connection with an investigation of abuse or neglect allegations, along with procedures for amending and appealing substantiated abuse or neglect reports; and the maintenance of a register of subjects found to have a substantiated category one abuse or neglect case. The substantial enforcement mechanisms “indicat[e] that the legislature considered how best to effectuate its intent and provided the avenues for relief it deemed warranted” … . Joseph v Nyack Hosp., 2020 NY Slip Op 07042, Second Dept 11-25-20

 

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UNDER THE AGUILAR-SPINELLI ANALYSIS, THERE ARE QUESTIONS OF FACT ABOUT WHETHER THERE WAS PROBABLE CAUSE FOR PLAINTIFF’S ARREST; THE CITY’S MOTION FOR SUMMARY JUDGMENT ON THE 42 USC 1983, FALSE ARREST, ASSAULT AND BATTERY CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the city’s motion for summary judgment on the 42 USC 1983, false arrest, assault and battery causes of action should not have been granted. Under the Aguilar-Spinelli analysis, there were questions of fact about the existence of probable cause for plaintiff’s arrest:

“The existence of probable cause constitutes a complete defense to a cause of action alleging false arrest, including a cause of action asserted pursuant to 42 USC § 1983 to recover damages for the deprivation of Fourth Amendment rights under color of state law that is the federal-law equivalent of a state common-law false arrest cause of action” … . “However, [w]hen an arrest is made without a warrant, as here, a presumption arises that it was unlawful, and the burden of proving justification is cast upon the defendant” … . Where the arrest was made without a prior judicial determination of probable cause, and where the arresting officer’s alleged probable cause is based on hearsay, probable cause is properly evaluated under the Aguilar-Spinelli test … . Under the Aguilar-Spinelli rule, where, as here, probable cause is predicated upon the hearsay statement of an informant, the proponent of the hearsay statement “must demonstrate that the informant is reliable and that the informant had a sufficient basis for his or her knowledge” … . Here the defendants failed to eliminate triable issues of fact as to the existence of probable cause for the arrest. The existence of triable issues of fact with respect to whether the police evaluations at issue, such as the evaluation of probable cause to arrest and requisite suspicion to perform a strip search, were objectively reasonable precludes an award of summary judgment … on the ground of qualified immunity … .

“To sustain a cause of action to recover damages for assault, there must be proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact” … . “To recover damages for battery, a plaintiff must prove that there was bodily contact, made with intent, and offensive in nature” … . A claim predicated on assault and battery may be based upon contact during an unlawful arrest … . Here, the defendants’ failure to establish, prima facie, that the plaintiff’s arrest was lawful precluded an award of summary judgment dismissing the sixth cause of action, which alleged assault and battery … . Cayruth v City of Mount Vernon, 2020 NY Slip Op 07027, Second Dept 11-25-20

 

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THE ALLEGATION THAT DEFENDANT SURGEONS PERFORMED A CHIROPRACTIC PROCEDURE DURING SPINAL FUSION SURGERY SOUNDED IN BATTERY, NOT MEDICAL MALPRACTICE, AND WAS TIME-BARRED; PLAINTIFF’S EXPERT, A CHIROPRACTOR, WAS NOT QUALIFIED TO OFFER AN OPINION ABOUT DEFENDANTS’ SURGERY (THIRD DEPT).

The Third Department determined plaintiff’s allegation the defendant doctors derotated her pelvis (a chiropractic procedure) during spine fusion surgery sounded in battery, not medical malpractice, because the claim alleged intentional, not negligent, conduct. Therefore the one-year statute of limitations applied and the action was time-barred. Plaintiff’s expert, a chiropractor, was not qualified to offer an opinion about the surgery performed by the defendants:

… [A]ny claim that defendants derotated plaintiff’s pelvis as a separate procedure from the surgery to which she consented is necessarily an allegation that they acted intentionally. Despite the fact that plaintiff’s complaint alleges only negligence, “when a patient agrees to treatment for one condition and is subjected to a procedure related to a completely different condition, there can be no question but that the deviation from the consent given was intentional” … . As such, this claim is subject to the one-year statute of limitations for the intentional tort of battery — that is, “intentional physical contact with another person without that person’s consent” — rather than the 2½-year period applicable to medical malpractice claims … . Young v Sethi, 2020 NY Slip Op 06330, Third Dept 11-5-20

 

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