Opinion
14500 Index No. 157325/14 Case No. 2020–04547
10-26-2021
Catherine BUTLER, Plaintiff–Appellant, v. The CITY OF NEW YORK, Defendant–Respondent.
Andrew F. Plasse & Associates LLC, Flushing (Andrew F. Plasse of counsel), for appellant. Georgia M. Pestana, Corporation Counsel, New York (Amy McCamphill of counsel), for respondent.
Andrew F. Plasse & Associates LLC, Flushing (Andrew F. Plasse of counsel), for appellant.
Georgia M. Pestana, Corporation Counsel, New York (Amy McCamphill of counsel), for respondent.
Gische, J.P., Webber, Mazzarelli, Shulman, Pitt, JJ.
Order, Supreme Court, New York County (Laurence L. Love, J.), entered on or about July 10, 2020, which granted defendant's motion for summary judgment dismissing the causes of action for assault and battery, unanimously reversed, on the law, without costs, and the motion denied.
Defendant's motion for summary judgment failed to show the absence of a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).
Plaintiff's remaining causes of action sounded in assault and battery, and not negligence. Therefore, the question was not whether the police owed plaintiff a special duty (see Valdez v. City of New York, 18 N.Y.3d 69, 936 N.Y.S.2d 587, 960 N.E.2d 356 [2011] ; Devivo v. Adeyemo, 70 A.D.3d 587, 894 N.Y.S.2d 747 [1st Dept. 2010] ), but whether the force used against her was more than necessary under the circumstances (see Jones v. State of New York, 33 N.Y.2d 275, 280, 352 N.Y.S.2d 169, 307 N.E.2d 236 [1973] ; Disla v. City of N.Y., 117 A.D.3d 617, 618, 986 N.Y.S.2d 463 [1st Dept. 2014] ; see generally Torres–Cuesta v. Berberich, 511 Fed. Appx. 89 [2d Cir.2013] ). Plaintiff's deposition testimony concerning the police officers’ conduct toward her supported the elements of a claim for assault and battery (see Charkhy v. Altman, 252 A.D.2d 413, 414, 678 N.Y.S.2d 40 [1st Dept. 1998] ; Hassan v. Marriott Corp., 243 A.D.2d 406, 663 N.Y.S.2d 558 [1st Dept. 1997] ). While defendants did not specifically recall interacting with plaintiff, they described a situation where they were disbursing a large crowd that was gathering around three different fights going on at the same time. Defendants do not dispute that plaintiff may have been pushed or shoved during the course of that incident. "Because of its intensely factual nature, the question of whether the use of force was reasonable under the circumstances is generally best left for a jury to decide" ( Holland v. City of Poughkeepsie, 90 A.D.3d 841, 844, 935 N.Y.S.2d 583 [2d Dept. 2011] ).