JOHNSON v. SUFFOLK COUNTY POLICE DEPARTMENT (1997)

In an action, inter alia, to recover damages for false arrest and battery, the defendants appeal from an order of the Supreme Court, Suffolk County (Newmark, J.), dated July 26, 1996, which granted the plaintiff's motion pursuant to CPLR 4404(a) to set aside the jury verdict in favor of the defendants on her cause of action to recover damages for battery and directed the entry of judgment in favor of the plaintiff on that cause of action.

ORDERED that the order is affirmed, with costs.

The plaintiff brought the instant action, inter alia, to recover damages for false arrest and battery.   At trial, she was awarded a judgment as a matter of law on her cause of action to recover damages for false arrest.   After the jury returned a verdict in favor of the defendants on her cause of action to recover damages for battery, the plaintiff moved pursuant to CPLR 4404(a), inter alia, to set aside the jury verdict and for the entry of judgment in her favor on that cause of action as a matter of law.   Her motion was granted and the defendants appeal.

 The court correctly determined that the plaintiff was entitled to judgment as a matter of law on her cause of action to recover damages for battery.   Even when the evidence is viewed in the light most favorable to the defendants, there is no rational process by which the jury could have found for them (see, Mirand v. City of New York, 84 N.Y.2d 44, 48-49, 614 N.Y.S.2d 372, 637 N.E.2d 263;  Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145;  O'Brien v. Covert, 187 A.D.2d 419, 420, 589 N.Y.S.2d 543;  Dolitsky v. Bay Isle Oil Co., 111 A.D.2d 366, 489 N.Y.S.2d 580).  “To recover damages for battery founded on bodily contact, a plaintiff must prove that there was bodily contact, that the contact was offensive, and that the defendant intended to make the contact without the plaintiff's consent” (Roe v. Barad, 230 A.D.2d 839, 840, 647 N.Y.S.2d 14;  see, Villanueva v. Comparetto, 180 A.D.2d 627, 580 N.Y.S.2d 30;  Laurie Marie M. v. Jeffrey T.M., 159 A.D.2d 52, 559 N.Y.S.2d 336, affd. 77 N.Y.2d 981, 571 N.Y.S.2d 907, 575 N.E.2d 393).   As the arrest of the plaintiff by the defendant police officer Stephen E. Brussell was unlawful, Brussell committed a battery when he touched the plaintiff during that arrest (see, Budgar v. State of New York, 98 Misc.2d 588, 592, 414 N.Y.S.2d 463).

The defendants' claim that the plaintiff's motion should have been denied as untimely (see, CPLR 4405) is without merit, as the plaintiff established “good cause” for her three-day delay in making the motion (CPLR 2004;  see, Pioli v. Morgan Guar. Trust Co. of N.Y., 199 A.D.2d 144, 148, 605 N.Y.S.2d 254;  cf., Casey v. Slattery, 213 A.D.2d 890, 891, 623 N.Y.S.2d 942).

MEMORANDUM BY THE COURT.