BROWN v. TURNER (2024)

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered August 22, 2022, which denied plaintiff's motion for summary judgment and granted defendant's cross-motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The court properly denied plaintiff's motion upon a finding that the arson and assault and battery claims underlying his General Municipal Law § 205–e cause of action are based on defendant's alleged intentional conduct, not negligence (see Gammons v. City of New York, 24 NY3d 562, 570 [2014]).  Plaintiff testified that defendant's assault on him was “absolutely” intentional, and the complaint also alleged intentional assault and battery.  Moreover, the Penal Law sections cited by plaintiff require intentional conduct, including the violation of Penal Law § 150.15 (arson in the second degree).  Thus, the statutory sections cited by plaintiff may not serve as predicates for his General Municipal Law § 205–e claims because they are not based on negligence (see Cagliostro v. Madison Sq Garden, Inc., 73 AD3d 534, 535 [1st Dept 2010];  Smiley v. North Gen Hosp, 59 AD3d 179, 180 [1st Dept 2009]).

The court correctly granted defendant's cross-motion based on the applicable statute of limitations, which is one year from the assault and battery (CPLR 215[3];  see Trott v. Merit Dept. Store, 106 A.D.2d 158, 159 [1st Dept 1985]).  The assault allegedly occurred on December 5, 2015 and the summons and complaint was filed on October 17, 2018, and is untimely.