Bastein v. Sotto

• Decision Date: 18 November 2002
• Citation: 299 A.D.2d 432,749 N.Y.S.2d 538
• Court: New York Supreme Court — Appellate Division
• Parties: JOEL BASTEIN et al., Appellants,<BR>v.<BR>CARMEN SOTTO et al., Respondents.

299 A.D.2d 432

749 N.Y.S.2d 538

JOEL BASTEIN et al., Appellants,

v.CARMEN SOTTO et al., Respondents.

Decided November 18, 2002.

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 defendantCarmen 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 (seeHoltz v Wildenstein & Co.,261 AD2d 336;Roe v Barad,230 AD2d 839).The plaintiffs...