Opinion
12-15-2014
Nelson BARRETO, Plaintiff–Respondent, v. Mirsad KOTAJ, Defendant, and T & R Construction Company, Defendant–Appellant.
Baxter Smith & Shapiro, P.C., White Plains (Sim R. Shapiro of counsel), for appellant. Kramer & Dunleavy, LLP, New York City (Lenore Kramer of counsel), for respondent.
Baxter Smith & Shapiro, P.C., White Plains (Sim R. Shapiro of counsel), for appellant.
Kramer & Dunleavy, LLP, New York City (Lenore Kramer of counsel), for respondent.
Present: SHULMAN, J.P., HUNTER, JR., J.
PER CURIAM. Judgment (Andrea Masley, J.), entered February 15, 2013, reversed, without costs, judgment vacated, and matter remanded for a new trial on the issues of liability and apportionment.
Plaintiff commenced this personal injury action upon allegations that he was "viciously assaulted" at the building in which he worked as a superintendent by the defaulting individual defendant (Kotaj), an employee of defendant T & R Construction Company (T & R). The trial evidence established, essentially without contradiction, that after complaining repeatedly to T & R about Kotaj's aggressive, violent and threatening conduct at the building premises, plaintiff was "sucker-punched" by Kotaj, intentional conduct which caused plaintiff to strike his head on the marble floor of the building lobby and suffer severe brain injuries. Despite the obvious and intentional nature of Kotaj's conduct, the trial court declined defendant's request to submit the case to the jury on an assault theory, and instead instructed the jury on the law of negligence under PJI 2:71 and fashioned a verdict sheet asking whether Kotaj had acted negligently.
On defendant's appeal, we reverse and order a new trial on the issues of liability and apportionment. Under no fair construction of the complaint or the trial evidence could Kotaj's conduct be deemed negligent. Once intentional offensive contact has been established, the actor is liable for assault and not negligence, inasmuch as there is "no such thing as a negligent assault" ( Cagliostro v. Madison Sq. Garden, Inc., 73 A.D.3d 534, 901 N.Y.S.2d 222 [2010], quoting Smiley v. North Gen. Hosp., 59 A.D.3d 179, 180, 872 N.Y.S.2d 456 [2009] ). On this record, the court's characterization of Kotaj's conduct as negligent was unsupported by the facts; Kotaj could be liable, if at all, only for assault (see Palker v. MacDougal Rest. Inc., 96 A.D.3d 629, 630, 947 N.Y.S.2d 465 [2012] ; Trott v. Merit Dept. Store, 106 A.D.2d 158, 160, 484 N.Y.S.2d 827 [1985] ). Further, "[b]ecause a finding of negligence cannot serve as a basis for liability against [Kotaj], such a finding cannot serve as a basis for imposing liability on [T & R] for negligent ... retention" ( Primeau v. Town of Amherst, 303 A.D.2d 1035, 1036, 757 N.Y.S.2d 201 [2003] ; see Cotter v. Summit Sec. Servs., Inc., 14 A.D.3d 475, 788 N.Y.S.2d 153 [2005] ; Wende C. v. United Methodist Church, 6 A.D.3d 1047, 1053, 776 N.Y.S.2d 390 [2004], affd. 4 N.Y.3d 293, 794 N.Y.S.2d 282, 827 N.E.2d 265 [2005] ). Thus, a new trial on liability is required. We must also of necessity set aside the apportionment of fault between T & R and Kotaj, since the jury may well have apportioned fault in reliance upon the court's mistaken finding that Kotaj could only have been negligent, rather than liable for an assault.
However, in our view, there is no need for a new trial on the issue of damages. If, upon the retrial, a jury finds liability, the fully supported damage awards issued by this jury on proper instructions should stand (see Harrison v. New York City Tr. Auth., 113 A.D.3d 472, 476, 978 N.Y.S.2d 194 [2014] ). The evidence adduced as to the nature, extent and permanency of plaintiff's injuries was sufficient to support the verdict reached and was not excessive (see CPLR 5501 ; Keating v. SS & R Mgt. Co., 59 A.D.3d 176, 872 N.Y.S.2d 459 [2009] ).
We have considered appellant's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.