CERILLI v. KEZIS (2005)

In an action, inter alia, to recover damages for battery, etc., the plaintiffs appeal, as limited by their brief, from so much of (1) an order of the Supreme Court, Dutchess County (Brands, J.), dated March 26, 2004, as granted the defendants' second renewed motion for summary judgment dismissing the complaint, and (2) an order of the same court dated August 31, 2004, as, upon reargument, adhered to the original determination.

ORDERED that the appeal from the order dated March 26, 2004, is dismissed, as that order was superseded by the order dated August 31, 2004, made upon reargument;  and it is further,

ORDERED that the order dated August 31, 2004, is reversed insofar as appealed from, on the law, and, upon reargument, so much of the order dated March 26, 2004, as granted the defendants' second renewed motion for summary judgment dismissing the complaint is vacated, the motion is denied, the complaint is reinstated, the action is restored to the top of the trial calendar, and the matter is remitted to the Supreme Court, Dutchess County, for trial;  and it is further,

ORDERED that one bill of costs is awarded to the appellants.

 On this, their second renewed motion for summary judgment (see Cerilli v. Kezis, 306 A.D.2d 430, 761 N.Y.S.2d 311), the defendants failed to establish their entitlement to judgment as a matter of law.   The plaintiffs' allegations that the defendant doctor performed a biopsy over the express objections of the injured plaintiff (hereinafter the plaintiff) state a cause of action sounding in battery (see Cross v. Colen, 6 A.D.3d 306, 307, 775 N.Y.S.2d 307;  Messina v. Matarasso, 284 A.D.2d 32, 34, 729 N.Y.S.2d 4;  Murriello v. Crapotta, 51 A.D.2d 381, 382, 382 N.Y.S.2d 513).

 The elements of battery are bodily contact, made with intent, and offensive in nature (see Siegell v. Herricks Union Free School Dist., 7 A.D.3d 607, 609, 777 N.Y.S.2d 148;  Tillman v. Nordon, 4 A.D.3d 467, 468, 771 N.Y.S.2d 670).   The intent required for battery is “intent to cause a bodily contact that a reasonable person would find offensive” (Jeffreys v. Griffin, 1 N.Y.3d 34, 41, n. 2, 769 N.Y.S.2d 184, 801 N.E.2d 404;  see e.g. Roe v. Barad, 230 A.D.2d 839, 840, 647 N.Y.S.2d 14).   The defendants acknowledge that “[t]here is no requirement that the contact be intended to cause harm” (see Masters v. Becker, 22 A.D.2d 118, 120, 254 N.Y.S.2d 633;  Meyers v. Epstein, 232 F.Supp.2d 192, 198).   Further, there is no merit to the defendants' contention that the plaintiff's consent to cauterization at the site of the alleged injury constituted implied consent to the biopsy over his express objections (see Cross v. Colen, supra).

We note that the question of informed consent is not before us and was not before this court on the prior appeal in this case (see Cerilli v. Kezis, supra).   We express no opinion as to whether the plaintiff gave informed consent to any procedure.