Bastein v. Sotto

Decision Date18 November 2002
Citation299 A.D.2d 432,749 N.Y.S.2d 538
CourtNew York Supreme Court — Appellate Division
PartiesJOEL BASTEIN et al., Appellants,<BR>v.<BR>CARMEN SOTTO et al., Respondents.

Feuerstein, J.P., Luciano, Townes and Cozier, JJ., concur.

Ordered that the order is modified by deleting the provision thereof denying that branch of the motion which was for summary judgment on the issue of liability against the defendant Carmen Sotto on the assault and battery causes of action and substituting a provision therefor granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the appellants.

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. To recover damages for battery, 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 (see Holtz v Wildenstein & Co., 261 AD2d 336; Roe v Barad, 230 AD2d 839). The plaintiffs established their prima facie entitlement to judgment as a matter of law as to the causes of action alleging assault and battery against the defendant Carmen Sotto. In opposition, the defendants failed to come forward with admissible evidence to raise a triable issue of fact. Thus, the plaintiffs were entitled to summary judgment on the issue of liability against the defendant Carmen Sotto on the causes of action to recover damages for assault and battery.

In light of our determination, the appellants' remaining contentions have been rendered academic.

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  • Giuffre v. Andrew
    • United States
    • U.S. District Court — Southern District of New York
    • January 11, 2022
    ...Leytman v. U. S. Dep't of Homeland Sec. Transp. Sec. Admin. , 804 F. App'x 78, 80 (2d Cir. 2020) (quoting Bastein v. Sotto , 299 A.D.2d 432, 433, 749 N.Y.S.2d 538, 539 (2d Dept. 2002) ).86 Messina v. Matarasso , 284 A.D.2d 32, 35, 729 N.Y.S.2d 4, 7 (1st Dept. 2001) (quoting Zgraggen v. Wils......
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    • United States
    • U.S. District Court — Southern District of New York
    • November 18, 2011
    ...N.Y. Realty Corp., 994 F.2d 105, 108 (2d Cir.1993); Cohen v. Davis, 926 F.Supp. 399, 402 (S.D.N.Y.1996); Bastein v. Sotto, 299 A.D.2d 432, 433, 749 N.Y.S.2d 538 (2d Dep't 2002). Here, however, Naughright does not allege that she was ever concerned or apprehensive that any act of the Defenda......
  • Orellana v. Macy's Retail Holdings, Inc.
    • United States
    • U.S. District Court — Southern District of New York
    • July 10, 2018
    ...conduct." Doe v. Alsaud, No. 13 Civ. 571 (RWS), 2016 WL 2689290, at *6 (S.D.N.Y. May 9, 2016) (quoting Bastein v. Sotto, 299 A.D.2d 432, 433, 749 N.Y.S.2d 538 (2d Dep't 2002)). "A battery claim under New York State law requires proof 'that there was bodily contact, that the contact was offe......
  • Biswas v. City of N.Y.
    • United States
    • U.S. District Court — Southern District of New York
    • September 30, 2013
    ...contact was offensive, and that the defendant intended to make the contact without the plaintiff's consent.” Bastein v. Sotto, 299 A.D.2d 432, 749 N.Y.S.2d 538, 539 (App.Div.2002). Like a claim for excessive force under § 1983, a state law claim for battery against a police officer in the c......
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