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Battery Cause of Action Based Upon the Complete Absence of Consent or Fraudulently Induced Consent Is Not Duplicative of a Dental Malpractice Allegation—Criteria Explained/Questions of Fact Raised Re: the Deceptive Business Practices Cause of Action—Some of the Criteria Explained

The Fourth Department determined the cause of action for battery was not duplicative of the cause of action for dental malpractice because it was based upon the allegations consent to the procedure was completely absent or was fraudulently induced.  In addition, there were questions of fact re: the deceptive business practices cause of action:

…[T]he cause of action asserting the complete absence of consent and/or fraudulently induced consent for treatment is properly treated as one for battery rather than for dental malpractice, and it is not duplicative of the dental malpractice cause of action … . “It is well settled that a medical professional may be deemed to have committed battery, rather than malpractice, if he or she carries out a procedure or treatment to which the patient has provided no consent at all’ ” … . The court properly denied that part of the … defendants’ motion with respect to the battery cause of action, inasmuch as they failed to meet their initial burden of establishing that they “did not intentionally engage in offensive bodily contact without plaintiff’s consent”… . …

A cause of action for deceptive business practices under section 349 “requires proof that the defendant engaged in consumer-oriented conduct that was materially deceptive or misleading, causing injury” … . Even assuming, arguendo, that the … defendants met their initial burden by establishing that the underlying transaction was private in nature and the allegedly deceptive acts were not aimed at the public at large …, we conclude that plaintiff’s submissions raised issues of fact concerning whether the … defendants engaged in a scheme to place profits before patient care, which allegedly included fraudulent practices that impacted consumers at large beyond a particular dentist’s treatment of an individual patient … . Matter of Smiles, 2015 NY Slip Op 01362, 4th Dept 2-13-15

 

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Law Explained Re: Suit Against Municipality and Police Officers Alleging Excessive Force

The Second Department explained the law relevant to a suit against police officers, including “John Does,” and a municipality alleging the excessive use of force.  A “1983” action against a municipality cannot be based solely on the actions of an employee or on the basis of respondeat superior, but an intentional tort action can.  “John Does” must be identified and served within the applicable statute of limitations:

“Claims that law enforcement personnel used excessive force in the course of an arrest are analyzed under the Fourth Amendment and its standard of objective reasonableness” … . “The reasonableness of an officer’s use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight'” … . 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 … . If found to be objectively reasonable, the officer’s actions are privileged under the doctrine of qualified immunity … . “To recover damages for battery, a plaintiff must prove that there was bodily contact, that the contact was offensive, i.e., wrongful under all of the circumstances, and intent to make the contact without the plaintiff’s consent” … . * * *

“A municipality is not liable under 42 USC § 1983 for an injury inflicted solely by its employees or agents” …, or “solely upon the doctrine of respondeat superior or vicarious liability” … . * * *

Unlike cases commenced under 42 USC § 1983, municipalities may be liable, under the doctrine of respondeat superior, for the common law torts, such as false arrest, malicious prosecution, assault, and battery, committed by their employees … . * * *

The Town defendants demonstrated that the complaint should be dismissed insofar as asserted against the John Does by showing that the plaintiffs failed to identify the John Does and serve them with process prior to the expiration of the statutes of limitations applicable to this case. In opposition, the plaintiffs failed to raise a triable issue of fact as to whether they exercised due diligence in attempting to identify and serve the John Does such that the applicable limitations periods had tolled or were otherwise inapplicable … . Lepore v Town of Greenburgh, 2014 NY Slip Op 06063, 2nd Dept 9-10-14

 

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Doctrine of Collateral Estoppel Applied In Civil Suit Alleging Sexual Abuse Where Defendant Pled Guilty to Offenses Described in the Civil Suit

The Second Department determined the doctrine of collateral estoppel applied where the issues raised in a civil suit, based upon allegations of sexual abuse to which the defendant pled guilty, were identical to the offenses described in the plea transcript. The doctrine, however, did not apply to the civil allegation of rape because the defendant did not plead guilty to rape:

“Where a criminal conviction is based upon facts identical to those in issue in a related civil action, the plaintiff in the civil action can successfully invoke the doctrine of collateral estoppel to bar the convicted defendant from litigating the issue of his liability” … . The doctrine applies whether the conviction resulted from a plea or a trial … . “The party seeking the benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior proceeding, and is decisive of the present action” … . “The party against whom preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination” … . Morrow v Gallagher, 2014 NY Slip Op 00489, 2nd Dept 1-29-14

 

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Whether the “Assault and Battery” Exclusion from Coverage Pertained to an Arson Is a Question of Fact Which Depends Upon the Motives of the Arsonist

A fire in plaintiff’s building left several people dead or injured.  A person was arrested and charged with arson in connection with the fire. The plaintiff brought a declaratory judgment action to determine whether the defendant insurance company was required to defend and indemnify plaintiff.  The main issue was whether the policy exclusion of damages caused by assault and battery applied. The First Department affirmed the trial court’s denial of plaintiff’s motion to dismiss the insurance company’s affirmative defenses, i.e., the assault and battery exclusion and the lack of bodily injury caused by accident or occurrence.  The First Department wrote:

Civil assault and battery are intentional acts, and the assault offenses with which the accused arsonist is charged do not include the intent to harm a specific individual (compare PJI 2d 3:2 [assault]; 3:3 [battery], with Penal Law 120.10[4] [assault in the first degree]; 120.05[6] [assault in the second degree]). Thus, assuming that the insurance policy exclusion is triggered by civil, rather than criminal, assault or battery, the critical inquiry is whether the accused arsonist, in allegedly causing the fire, intended to harm any occupant of the building. Although the determination of the criminal action is therefore not necessary to a determination of the application of the exclusion, the criminal trial may shed light on the accused arsonist’s motives, including whether he intended to harm anyone inside the building. In any event, the criminal trial may enable defendant to obtain access to evidence and witnesses that will assist in determining whether the exclusion applies. Based on representations made at oral argument, the criminal trial has been concluded and, thus, the stay should be lifted. In light of the foregoing, the motion court correctly denied plaintiff’s motion to dismiss the affirmative defenses based on the assault and battery exclusion and the lack of bodily injury caused by an accident or occurrence.  20-35 86th St Realty, LLC v Tower Ins Co of NY, 2013 NY Slip Op 03413, 1st Dept, 5-14-13

 

 

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