WERTZBERGER v. CITY OF NEW YORK (1998)

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Hutcherson, J.), entered September 2, 1997, which, upon a jury verdict, is in favor of the defendant and against the plaintiff.

ORDERED that the judgment is affirmed, with costs.

 The Supreme Court correctly denied the plaintiff's request for a negligence charge.   The gravamen of the plaintiff's claim was that the defendant, by its police officers, assaulted her by slapping handcuffs on her wrists and pushing her into a patrol car upon her arrest.   It is well settled that no cause of action to recover damages for negligent assault exists in New York (see, Richman v. Nussdorf, 203 A.D.2d 548, 612 N.Y.S.2d 933;  Rafferty v. Ogden Mem. Hosp., 140 A.D.2d 911, 528 N.Y.S.2d 729), because “once intentional offensive conduct has been established, the actor is liable for assault and not negligence” (Panzella v. Burns, 169 A.D.2d 824, 825, 565 N.Y.S.2d 194;  see, Mazzaferro v. Albany Motel Enters., 127 A.D.2d 374, 515 N.Y.S.2d 631).

 Contrary to the plaintiff's contention, the Supreme Court correctly denied her motion to set aside the verdict under CPLR 4404(a).   The jury could have reached its determination on a fair interpretation of the evidence presented, with consideration given to the credibility of the witnesses and the drawing of reasonable inferences therefrom (see, Cohen v. Hallmark Cards, 45 N.Y.2d 493, 410 N.Y.S.2d 282, 382 N.E.2d 1145;  Pomaro v. McKeon, 228 A.D.2d 572, 644 N.Y.S.2d 638;  Nicastro v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184;  Harris v. Armstrong, 97 A.D.2d 947, 468 N.Y.S.2d 740, affd. 64 N.Y.2d 700, 485 N.Y.S.2d 523, 474 N.E.2d 1191).

The plaintiff's remaining contentions are either unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.