Babikian v. Nikki Midtown, LLC

• Decision Date: 10 March 2009
• Docket Number: 33.
• Citation: 875 N.Y.S.2d 20,60 A.D.3d 470,2009 NY Slip Op 01722
• Parties: ARAM BABIKIAN, Respondent, v. NIKKI MIDTOWN, LLC, et al., Appellants, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

60 A.D.3d 470

875 N.Y.S.2d 20

2009 NY Slip Op 01722

ARAM BABIKIAN, Respondent, v. NIKKI MIDTOWN, LLC, et al., Appellants, et al., Defendant.

33.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided March 10, 2009.

Order, Supreme Court, New York County (Richard F. Braun, J.), entered on or about August 7, 2008, which, in an action for personal injuries sustained in an attack against plaintiff by defendant Berlingo outside premises operated by defendants-appellants (defendants) as a nightclub and restaurant, insofar as appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the complaint, and awarded plaintiff $100 motion costs, unanimously modified, on the law and upon a search of the record, to dismiss plaintiff's second and fourth causes of action for "negligent assault" and "negligent battery," respectively, and otherwise affirmed, without costs.

We modify to dismiss the second and fourth causes of action for "negligent assault" and "negligent battery" as no such causes of action exist under New York law (Smiley v North Gen. Hosp., 59 AD3d 179 [2009]; Fariello v City of New York Bd. of Educ., 199 AD2d 461, 462 [1993]). As for plaintiff's causes of action for assault (first), battery (third), and negligent hiring against each of the defendants (fifth and sixth), defendants' motion should be denied regardless of the sufficiency of plaintiff's opposing papers, because defendants do not meet their prima facie burden of submitting evidentiary proof in admissible form sufficient to demonstrate as a matter of law that, as they claim, Berlingo was not in their employ at the time of the attack, or, even if he were, that the attack was not within the scope of his duties as a bouncer (see JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384 [2005]). The unsworn incident report, which was apparently prepared shortly after the attack by defendants' general manager and is submitted by defendants to show that the attack took place outside of their premises, is not authenticated by the attorney's affirmation to which it is attached (see Zuluaga v P.P.C. Constr., LLC, 45 AD3d 479, 480 [2007]; McDonald v Tishman Interiors Corp., 290 AD2d 266, 267 [2002]), and defendants do not provide an affidavit from the general manager. The affidavit of defendants' bookkeeper stating that Berlingo was in the nightclub on the night of the attack "solely as a patron" is inadmissible hearsay,...