FUGAZY v. (and a third-party action).

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Supreme Court, Appellate Division, Second Department, New York.

Sandra FUGAZY, et al., appellants, v. Richard CORBETTA, et al., respondents (and a third-party action).

Decided: November 28, 2006

ROBERT W. SCHMIDT, J.P., THOMAS A. ADAMS, MARK C. DILLON, and JOSEPH COVELLO, JJ. David J. Squirrell, Mount Kisco, N.Y., for appellants. Russo, Keane & Toner, LLP, New York, N.Y. (Christopher G. Keane of counsel), for respondent Richard Corbetta.

In an action to recover damages for assault and battery, negligence, and negligent supervision, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated May 5, 2005, which, inter alia, upon searching the record, awarded the plaintiffs summary judgment on the issue of liability against the defendant Ken Romanello and granted the cross motion of the defendant Richard Corbetta for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is modified, on the law, by (1) deleting the provision thereof which, upon searching the record, awarded the plaintiffs summary judgment on the issue of liability against the defendant Ken Romanello, and (2) deleting the provision thereof granting those branches of the cross motion of the defendant Richard Corbetta which were for summary judgment dismissing the plaintiffs' assault and battery and negligence causes of action insofar as asserted against him and substituting therefor a provision denying those branches of the cross motion;  as so modified, the order is affirmed, without costs or disbursements.

The plaintiff Nicholas Fugazy (hereinafter Fugazy) allegedly sustained personal injuries during an altercation following a Catholic Youth Organization basketball game.   He incurred a single blow to the left side of his face but did not observe who struck him.

The plaintiffs subsequently commenced this action asserting assault and battery and negligence causes of action against the defendant Richard Corbetta, whose son played on the opposing team, and the defendant Ken Romanello, another member of that team.   A separate cause of action alleging negligent supervision was also interposed against Corbetta.   Romanello moved and Corbetta cross-moved for summary judgment dismissing the complaint insofar as asserted against them.   The Supreme Court denied Romanello's motion, granted Corbetta's cross motion, and, upon searching the record, awarded the plaintiffs summary judgment on the issue of liability against Romanello (see CPLR 3212 [b] ).

The Supreme Court erred in granting those branches of Corbetta's cross motion which were for summary judgment dismissing the assault and battery and negligence causes of action insofar as asserted against him and, upon searching the record, awarding the plaintiffs summary judgment on the issue of liability against Romanello.

 “To sustain a cause of action to recover damages for assault, there must be proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact” (Cotter v. Summit Sec. Servs., 14 A.D.3d 475, 788 N.Y.S.2d 153;  see Bastein v. Sotto, 299 A.D.2d 432, 433, 749 N.Y.S.2d 538).  “The elements of a cause of action [to recover damages] for battery are bodily contact, made with intent, and offensive in nature” (Tillman v. Nordon, 4 A.D.3d 467, 468, 771 N.Y.S.2d 670;  see Zgraggen v. Wilsey, 200 A.D.2d 818, 819, 606 N.Y.S.2d 444).   Contrary to the conclusion of the Supreme Court, triable issues of fact exist as to which, if either, defendant struck Fugazy and, if so, whether the touching was intentional and offensive (see Siegell v. Herricks Union Free School Dist., 7 A.D.3d 607, 609, 777 N.Y.S.2d 148;  Tillman v. Nordon, supra at 468, 771 N.Y.S.2d 670;  Goff v. Clarke, 302 A.D.2d 725, 727, 755 N.Y.S.2d 493;  Rubin v. Belsky, 270 A.D.2d 405, 407, 704 N.Y.S.2d 886).

 Conversely, Corbetta established a prima facie entitlement to summary judgment dismissing the negligent supervision cause of action by demonstrating that he had no duty to supervise Romanello or the other members of his son's team, and the plaintiffs failed to raise a triable issue of fact as to that issue (see Morning v. Riverhead Cent. School Dist., 27 A.D.3d 435, 436, 811 N.Y.S.2d 747;  Jerideau v. Huntington Union Free School Dist., 21 A.D.3d 992, 993, 801 N.Y.S.2d 394;  Lumley v. Motts, 1 A.D.3d 573, 574, 768 N.Y.S.2d 24).

The plaintiffs' remaining contentions are without merit.

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