SCHETZEN v. ROBOTSIS (2000)

In an action to recover damages for personal injuries, the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (McCaffrey, J.), dated May 25, 1999, which granted the motion of the defendant Christopher Thurau for summary judgment dismissing the complaint insofar as asserted against him, and (2) an order of the same court, dated September 1, 1999, which granted the separate motions of the defendants Charles Robotsis and Michael Sulin for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the orders are affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

 The plaintiffs' cause of action, which was couched in terms of negligence, was properly treated as a cause of action to recover damages for an assault.   The plaintiffs alleged solely that the defendants “negligently held” or “negligently struck” their minor plaintiff son.   On appeal, the plaintiffs contend that their cause of action was not one alleging intentional tort.   Contrary to plaintiffs' contentions, if, based on a reading of the factual allegations, the essence of the cause of action is, as here, assault, the plaintiffs cannot exalt form over substance by labeling the action as one to recover damages for negligence (see, Goldberg v. Sitomer, Sitomer & Porges, 97 A.D.2d 114, 469 N.Y.S.2d 81, affd. 63 N.Y.2d 831, 482 N.Y.S.2d 268, 472 N.E.2d 44, cert. denied 470 U.S. 1028, 105 S.Ct. 1395, 84 L.Ed.2d 784;   Friedman v. Gallinelli, 240 A.D.2d 699, 659 N.Y.S.2d 317;  Trott v. Merit Department Store, 106 A.D.2d 158, 484 N.Y.S.2d 827).   It is well settled that no cause of action to recover damages for negligent assault exists in New York (see, Wertzberger v. City of New York, 254 A.D.2d 352, 680 N.Y.S.2d 260;   Barraza v. Sambade, 212 A.D.2d 655, 622 N.Y.S.2d 964;  Fariello v. City of New York Bd. of Educ., 199 A.D.2d 461, 606 N.Y.S.2d 20;  Richman v. Nussdorf, 203 A.D.2d 548, 612 N.Y.S.2d 933;  Rafferty v. Arnot Ogden Mem. Hosp., 140 A.D.2d 911, 528 N.Y.S.2d 729;  see also, Prosser & Keeton, Torts § 10, at 46 [5th ed.] ), because “once intentional offensive contact has been established, the actor is liable for assault and not negligence” (Wertzberger v. City of New York, supra;  see, Sanchez by Hernandez v. Wallkill Central School District, 221 A.D.2d 857, 633 N.Y.S.2d 871;  Panzella v. Burns, 169 A.D.2d 824, 565 N.Y.S.2d 194;  Mazzaferro v. Albany Motel Enters., 127 A.D.2d 374, 515 N.Y.S.2d 631).

The plaintiffs' remaining contentions are without merit.

MEMORANDUM BY THE COURT.