Opinion
June 18, 1999
Appeals from Order of Supreme Court, Monroe County, Polito, J. — Summary Judgment.
PRESENT: PINE, J. P., LAWTON, PIGOTT, JR., HURLBUTT AND SCUDDER, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court did not abuse its discretion in denying defendant's motion to dismiss the complaint pursuant to CPLR 3216 for failure to file a note of issue timely. Plaintiff established that he has a "good and meritorious cause of action" (CPLR 3216 [e]), and, although plaintiff's excuse for the delay was not strong, we conclude that the court did not abuse its discretion in denying the motion and assessing $250 in costs for the motion against plaintiff (see, Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 504-505).
Defendant further contends that the court erred in denying its cross motion for summary judgment seeking dismissal of the fourth cause of action. We conclude that the cross motion must be granted in part and so much of the fourth cause of action as alleges negligent commission of intentional torts dismissed. Intentional torts require proof of intent, not mere negligence (see, e.g., Salimbene v. Merchants Mut. Ins. Co., 217 A.D.2d 991, 994). Any damages that plaintiff has suffered from common-law assault, battery and false imprisonment are recoverable on the first three causes of action, which allege the commission of those intentional torts. We do not dismiss the remainder of the fourth cause of action, which asserts negligence claims for failure properly to medicate and to sedate, and failure to anticipate and/or meet plaintiff's needs as a postoperative patient.
The contention that the court erred in denying plaintiff's cross motion for summary judgment on the fourth cause of action is without merit.
We modify the order, therefore, by granting defendant's cross motion in part and dismissing so much of the fourth cause of action as alleges negligent commission of common-law assault, battery and false imprisonment.