Opinion
January 28, 1991
Appeal from the Supreme Court, Richmond County (Leone, J.).
Ordered that the order and judgment is affirmed insofar as appealed from, with costs.
On March 21, 1985, while inside the Richmond County Supreme Court building, the defendant Jeffrey Burns, an attorney, punched the plaintiff, also an attorney, in the face, breaking her nose. That act marked the culmination of a verbal altercation between the two which had begun inside a Judge's chambers during their representation of clients in a matrimonial action. Both parties filed criminal complaints against the other for harassment which were eventually dismissed. Thereafter, the instant action was commenced.
Contrary to plaintiff's contention, the court properly dismissed her third cause of action sounding in negligence. It is well settled that once intentional offensive contact has been established, the actor is liable for assault and not negligence. "`There is, properly speaking, no such thing as a negligent assault'" (Rafferty v Ogden Mem. Hosp., 140 A.D.2d 911, quoting from Prosser and Keeton, Torts § 10, at 46; see also, Trott v Merit Dept. Store, 106 A.D.2d 158). We further find that the court properly denied recovery on the plaintiff's fourth cause of action for slander. The statements made by the defendant in the Judge's chambers were privileged since they may be considered pertinent to the underlying litigation (see, Dougherty v Flanagan, Kelly, Ronan, Spollen Stewart, 145 A.D.2d 461; Martirano v Frost, 25 N.Y.2d 505, 507). Furthermore, under the circumstances, the court properly determined that the obscenities uttered by the defendant would not be understood in a literal context by those who heard them.
We note additionally that the court properly denied recovery on the plaintiff's fifth cause of action for malicious prosecution. The plaintiff failed to establish that the underlying criminal action was resolved in her favor (see, Miller v Star, 123 A.D.2d 750, 751; Hollender v Trump Vil. Coop., 58 N.Y.2d 420).
We find no reason to disturb the damage award. We have reviewed the plaintiff's remaining contentions and find them to be without merit. Brown, J.P., Harwood, Miller and Ritter, JJ., concur.