Opinion
193 CA 19–01599
03-13-2020
Amy KESSEL, Plaintiff–Respondent, v. April ADAMS, Defendant–Appellant, et al., Defendant.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (AARON M. ADOFF OF COUNSEL), FOR DEFENDANT–APPELLANT. NASH CONNORS, P.C., BUFFALO, GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (ELIZABETH G. ADYMY OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (AARON M. ADOFF OF COUNSEL), FOR DEFENDANT–APPELLANT.
NASH CONNORS, P.C., BUFFALO, GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (ELIZABETH G. ADYMY OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, CURRAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion of defendant April Adams is granted and the complaint against her is dismissed.
Memorandum: Plaintiff, a school teacher, commenced this action seeking damages for injuries she sustained to her shoulder and back when defendants, two of her students, began fighting one another and plaintiff, who was standing between them, was propelled into a locker. Plaintiff asserted a sole cause of action, for negligence. April Adams (defendant) moved for summary judgment dismissing the complaint against her on the ground that plaintiff's action was time-barred. Defendant appeals from an order insofar as it denied her motion.
We agree with defendant that Supreme Court erred in denying the motion. Defendant met her initial burden by establishing that plaintiff was injured as a result of intentional conduct that constituted a battery and not negligent conduct (see Cagliostro v. Madison Sq. Garden, Inc., 73 A.D.3d 534, 534–535, 901 N.Y.S.2d 222 [1st Dept. 2010] ; see also Borrerro v. Haks Group, Inc., 165 A.D.3d 1216, 1218, 87 N.Y.S.3d 618 [2d Dept. 2018] ). "A valid claim for battery exists where a person intentionally touches another without that person's consent" ( Wende C. v. United Methodist Church, N.Y. W. Area, 4 N.Y.3d 293, 298, 794 N.Y.S.2d 282, 827 N.E.2d 265 [2005], cert. denied 546 U.S. 818, 126 S.Ct. 346, 163 L.Ed.2d 57 [2005] ; see Relf v. City of Troy, 169 A.D.3d 1223, 1226, 94 N.Y.S.3d 672 [3d Dept. 2019] ; Robert M.D. v. Sterling, 129 A.D.3d 1489, 1490, 11 N.Y.S.3d 756 [4th Dept. 2015] ). " ‘The intent required for battery is intent to cause a bodily contact that a reasonable person would find offensive’; ‘there is no requirement that the contact be intended to cause harm’ " ( Relf, 169 A.D.3d at 1226, 94 N.Y.S.3d 672 ). The deposition testimony of plaintiff and defendants submitted in support of the motion established that defendants intentionally caused offensive bodily contact with each other by engaging in a physical fight (see Eisch v. Sandy Cr. Cent. Sch. Dist., 141 A.D.3d 1091, 1092, 33 N.Y.S.3d 803 [4th Dept. 2016] ; Council v. Utica First Ins. Co., 77 A.D.3d 1433, 1434, 909 N.Y.S.2d 596 [4th Dept. 2010], lv denied 16 N.Y.3d 702, 2011 WL 135185 [2011] ). Although defendants did not intend to make physical contact with or to injure plaintiff, the contact that resulted in plaintiff's injuries was nevertheless intentional under the doctrine of "transferred intent" ( Rubino v. Ramos, 226 A.D.2d 912, 913, 641 N.Y.S.2d 409 [3d Dept. 1996] ; see Jones v. State of New York, 96 A.D.2d 105, 110–111, 468 N.Y.S.2d 223 [4th Dept. 1983], lv denied 62 N.Y.2d 605, 479 N.Y.S.2d 1026, 467 N.E.2d 895 [1984] ; see also Borrerro, 165 A.D.3d at 1218, 87 N.Y.S.3d 618 ; Parler v. North Sea Ins. Co., 129 A.D.3d 926, 928, 11 N.Y.S.3d 659 [2d Dept. 2015] ).
Defendant thus established that this action is barred by the one-year statute of limitations applicable to intentional torts (see CPLR 215[3] ; McDonald v. Riccuiti, 126 A.D.3d 954, 954–955, 6 N.Y.S.3d 134 [2d Dept. 2015] ; see also Tong v. Target, Inc., 83 A.D.3d 1046, 1046, 922 N.Y.S.2d 458 [2d Dept. 2011], lv denied 17 N.Y.3d 712, 2011 WL 4835780 [2011] ). In opposition to the motion, plaintiff failed to raise a triable issue of fact. Plaintiff "could not avoid the running of the limitations period merely by attempting to couch the [complaint] as sounding in negligence" ( McDonald, 126 A.D.3d at 955, 6 N.Y.S.3d 134 ).