Opinion
2020–07476 Index No. 605457/15
12-13-2023
Debra PLEVA, respondent, v. COUNTY OF SUFFOLK, et al., appellants.
Dennis Brown, Acting County Attorney, Hauppauge, NY (Diana T. Bishop of counsel), for appellants. Dell & Dean, PLLC (Jay J. Massaro and Mischel & Horn, P.C., New York, NY [Scott T. Horn and Christen Giannaros], of counsel), for respondent.
Dennis Brown, Acting County Attorney, Hauppauge, NY (Diana T. Bishop of counsel), for appellants.
Dell & Dean, PLLC (Jay J. Massaro and Mischel & Horn, P.C., New York, NY [Scott T. Horn and Christen Giannaros], of counsel), for respondent.
COLLEEN D. DUFFY, J.P., ANGELA G. IANNACCI, LINDA CHRISTOPHER, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for negligence, assault, and battery, the defendants appeal from an order of the Supreme Court, Suffolk County (Robert F. Quinlan, J.), dated September 10, 2020. The order, insofar as appealed from, denied those branches of the defendants’ motion which were for summary judgment dismissing the causes of action alleging negligence, assault, and battery.
ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging negligence, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff commenced this action, inter alia, to recover damages for personal injuries she allegedly sustained during an altercation with police officers employed by the County of Suffolk and the Suffolk County Police Department (hereinafter together the defendants). The incident occurred while the police officers were attempting to arrest the plaintiff's boyfriend. The defendants moved, among other things, for summary judgment dismissing the causes of action alleging negligence, assault, and battery. In an order dated September 10, 2020, the Supreme Court, inter alia, denied those branches of the motion. The defendants appeal.
New York does not recognize a cause of action alleging negligent assault or battery (see Borrerro v. Haks Group, Inc., 165 A.D.3d 1216, 1217, 87 N.Y.S.3d 618 ; Johnson v. City of New York, 148 A.D.3d 1126, 1127, 50 N.Y.S.3d 461. "As such, if the only inference that may be drawn from plaintiff's evidence is that defendant's contact with plaintiff was intentional, ... the issue of negligence should not be submitted to the jury" ( Borrerro v. Haks Group, Inc., 165 A.D.3d at 1218, 87 N.Y.S.3d 618 [internal quotation marks omitted]; see N.Y. PJI 3:3, Comment; Thomas v. Fayee, 302 A.D.2d 451, 452, 756 N.Y.S.2d 584 ). Although the defendant raises this argument for the first time on appeal, we reach the issue, as "it presents a pure question of law that appears on the face of the record and could not have been avoided if raised at the proper juncture" ( MTGLQ Invs., L.P. v. Baksh, 215 A.D.3d 666, 668, 187 N.Y.S.3d 258 [internal quotation marks omitted]; see Bayview Loan Servicing, LLC v. Chaudhury, 188 A.D.3d 1126, 1128, 137 N.Y.S.3d 496 ).
Here, the defendants established their prima facie entitlement to summary judgment dismissing the plaintiff's cause of action alleging negligence by submitting, inter alia, a transcript of the plaintiff's testimony at a General Municipal Law § 50–h hearing, in which she testified that a police officer grabbed her, picked her up, and threw her to the ground, causing her injuries. Where, as here, intentional offensive conduct has been established, the actor may be found liable for assault or battery, but not negligence (see Borrerro v. Haks Group, Inc., 165 A.D.3d at 1218, 87 N.Y.S.3d 618 ; Oteri v. Village of Pelham, 100 A.D.3d 725, 726, 954 N.Y.S.2d 171 ). In opposition, the plaintiff failed to raise a triable issue of fact as to whether any of her alleged injuries were caused by unintentional conduct (see Borrerro v. Haks Group, Inc., 165 A.D.3d at 1218, 87 N.Y.S.3d 618 ; Oteri v. Village of Pelham, 100 A.D.3d at 726, 954 N.Y.S.2d 171 ). Accordingly, the Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging negligence.
However, the Supreme Court properly denied those branches of the defendants’ motion which were for summary judgment dismissing the causes of action alleging assault and battery. Police officers are entitled to qualified immunity on state law claims if their actions are "objectively reasonable" ( Holland v. City of Poughkeepsie, 90 A.D.3d 841, 846, 935 N.Y.S.2d 583 ; see Lepore v. Town of Greenburgh, 120 A.D.3d 1202, 1203, 992 N.Y.S.2d 329 ). The determination of whether a use of force was objectively reasonable is an "intensely factual" question "best left for a jury to decide" ( Williams v. City of New York, 129 A.D.3d 1066, 1067, 12 N.Y.S.3d 256 [internal quotation marks omitted]; see Lepore v. Town of Greenburgh, 120 A.D.3d at 1203, 992 N.Y.S.2d 329 ; Holland v. City of Poughkeepsie, 90 A.D.3d at 844, 935 N.Y.S.2d 583 ). Here, the defendants’ submissions failed to eliminate triable issues of fact as to whether the police officer's actions were objectively reasonable under the circumstances.
The defendants’ remaining contentions either need not be reached in light of our determination or are without merit.
DUFFY, J.P., IANNACCI, CHRISTOPHER and VOUTSINAS, JJ., concur.