Fariello v. City of New York Bd. of Educ.
| Decision Date | 27 December 1993 |
| Citation | 606 N.Y.S.2d 20,199 A.D.2d 461 |
| Parties | , 88 Ed. Law Rep. 203 Mark FARIELLO, etc., Respondent, v. CITY OF NEW YORK BOARD OF EDUCATION, et al., Defendants, Connie Emilio, etc., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Smith & LaQuercia, P.C., New York City (Susan Ricardo and Thomas Michael LaQuercia, of counsel), for appellant.
Before COPERTINO, J.P., and PIZZUTO, SANTUCCI and JOY, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, etc., the defendant Connie Emilio appeals from so much of an order of the Supreme Court, Kings County (Bernstein, J.), dated October 22, 1991, as denied her motion for summary judgment dismissing the complaint insofar as it is asserted against her.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, the complaint is dismissed insofar as it is asserted against the appellant, and the action against the remaining defendants is severed.
In January 1989 the plaintiff, the appellant, Connie Emilio, and the appellant's boyfriend were among the guests at a birthday party. After the boyfriend left the party, the appellant alleges that the plaintiff made disparaging remarks to her. The day after the party, the appellant told her boyfriend about the incident. Three days after the party and two days after the appellant's conversation with her boyfriend, the boyfriend confronted the plaintiff at Lafayette High School where they were both students, and assaulted the plaintiff.
The plaintiff commenced an action to recover damages for personal injuries, etc., against, inter alia, the appellant and her boyfriend. With respect to the appellant, the complaint alleged that she negligently "made false and misleading statements to [her boyfriend] causing [him] to attack" the plaintiff, and that she "induced [her boyfriend] to commit an assault and battery upon" the plaintiff. The appellant moved for summary judgment dismissing the complaint insofar as it is asserted against her, but the Supreme Court denied this relief. We now reverse the order insofar as appealed from.
With respect to the cause of action grounded in negligence, we note that " '[t]here is no such cause of action as negligent assault and battery' " (United Nat. Ins. Co. v. Tunnel, Inc., 988 F.2d 351, 353, quoting from State Farm Fire & Cas. Co. v. van Gorder, 235 Neb. 355, 455 N.W.2d 543, 545; see also, Martin v. Yeoham, 419 S.W.2d 937, 944 [Mo.]. Nor can one negligently tell a deliberate lie.
Assuming, arguendo, that the appellant did lie to her boyfriend (a premise which is not supported by the record), and assuming...
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