Hassan v. Marriott Corp.

• Decision Date: 30 October 1997
• Citation: 243 A.D.2d 406,663 N.Y.S.2d 558
• Parties: , 1997 N.Y. Slip Op. 9337 Atef HASSAN, Plaintiff-Respondent, v. MARRIOTT CORPORATION, et al., Defendants-Appellants. Hashem KHATIBI, Plaintiff-Respondent, v. MARRIOTT CORPORATION, et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 558

663 N.Y.S.2d 558

243 A.D.2d 406, 1997 N.Y. Slip Op. 9337

Atef HASSAN, Plaintiff-Respondent, v. MARRIOTT CORPORATION, et al., Defendants-Appellants.

Hashem KHATIBI, Plaintiff-Respondent, v. MARRIOTT CORPORATION, et al., Defendants-Appellants.

Supreme Court, Appellate Division First Department.

Oct. 30, 1997.

Linda F. Fedrizzi, for plaintiff-respondent Atef Hassan.

Paul S. Goldstein, for plaintiff-respondent Hashem Khatibi.

David E. Block, for defendants-appellants.

Before MURPHY, P.J., and ROSENBERGER, ELLERIN, RUBIN and TOM, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Carol Arber, J.), entered on or about November 25, 1996, which, inter alia, denied defendants' motion for partial summary judgment, unanimously modified, on the law, to the extent of granting defendants' motion to dismiss the second cause of action as against all defendants except Mike Domingus, and to dismiss the third and fourth causes of action in their entirety, and otherwise affirmed, without costs.

Summary judgment dismissing the first and fifth causes of action, for false imprisonment and malicious prosecution, respectively, was properly denied. Plaintiffs' statements, that they had permission to borrow the equipment, raised issues of fact as to the nature of the initial appropriation of the items and as to the basis of their refusal to return the items when asked to do so. Further, the allegations in the complaint as supported by the affidavits and deposition testimony provided by plaintiffs, raised another issue with respect to the existence of actual malice on the part of defendants (see, Martin v. City of Albany, 42 N.Y.2d 13, 17-19, 396 N.Y.S.2d 612, 364 N.E.2d 1304). Furthermore, defendants' proof on the motion failed to sufficiently defeat plaintiffs' claim for false imprisonment so as to warrant summary judgment (Broughton v. State of New York, 37 N.Y.2d 451, 457, 373 N.Y.S.2d 87, 335 N.E.2d 310, cert. denied sub nom. Schanbarger v. Kellogg, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257).

Defendants other than Domingus were entitled to summary judgment dismissing the second cause of action. To maintain a cause of action for battery, plaintiffs must prove bodily contact, with intent that was offensive in nature (Laurie Marie M. v. Jeffrey T.M., 159 A.D.2d 52, 55, 559 N.Y.S.2d 336, affd., 77 N.Y.2d 981, 571 N.Y.S.2d 907, 575 N.E.2d 393). While physical injury need not be present for an assault, there must be conduct that places the plaintiff in imminent apprehension of harmful contact (Hayes v Schultz, 150 A.D.2d 522, 523, 541 N.Y.S.2d 115). There is no proof submitted by plaintiffs that anyone other than defendant Domingus touched their persons or placed them in imminent apprehension of harmful or offensive...