Mazzaferro v. Albany Motel Enterprises, Inc.

• Decision Date: 14 May 1987
• Citation: 515 N.Y.S.2d 631,127 A.D.2d 374
• Parties: Kenneth MAZZAFERRO, Appellant, v. ALBANY MOTEL ENTERPRISES, INC., et al., Defendants, and Ten Eyck Hotel Associates et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 631

515 N.Y.S.2d 631

127 A.D.2d 374

Kenneth MAZZAFERRO, Appellant, v. ALBANY MOTEL ENTERPRISES, INC., et al., Defendants, and Ten Eyck Hotel Associates et al., Respondents.

Supreme Court, Appellate Division,

Third Department.

May 14, 1987.

Friedman, Maksail, Hirschen & Miller (Jeffrey N. Miller, of counsel), Schenectady, for appellant.

Donohue, Donohue & Sabo, P.C. (Bruce S. Huttner, of counsel), Albany, for respondents.

Before MAHONEY, P.J., and WEISS, MIKOLL, LEVINE and HARVEY, JJ.

LEVINE, Justice.

Plaintiff brought the instant damage action for personal injuries he sustained as a result of allegedly being attacked in a discotheque and cocktail lounge in a downtown hotel in the City of Albany. He sued, among others, the corporate operator of the establishment and the agency which provided security there on two alternative causes of action, negligence and the intentional tort of assault and battery. Plaintiff's proof at the trial, from his testimony and that of two friends who were eyewitnesses, was that, while sitting at the bar having a drink, another patron, who was intoxicated, became aggressive, spilled a drink on him and then struck him. Plaintiff and his assailant grappled until two "bouncers" employed by the establishment seized the man who had attacked plaintiff and ejected him from the premises. Moments later, plaintiff was struck from behind by a bus boy and another bouncer, as a result of which he fell and suffered the injuries complained of. The defense essentially was that plaintiff was never attacked by security personnel of the establishment but, in fact, any injuries he sustained were wholly as a result of his fracas with the other patron. Statements by plaintiff given immediately after the incident, consistent with the defense's version of what transpired, were introduced into evidence.

At the close of all the proof, the trial court dismissed plaintiff's negligence cause of action. The jury returned a verdict of no cause of action on the remaining claim for assault and battery. This appeal by plaintiff followed.

Plaintiff's only assignment of error is the refusal of the trial court to submit his cause of action in negligence to the jury. It is conceded there was no evidence introduced of negligence on the part of defendants ^* in hiring or training security personnel. Plaintiff claims, however, that his evidence established the negligence cause of action in that it supported inferences that defendants' employees were guilty of unintentionally excessive and unnecessary use of force, or negligent misapprehension that plaintiff was the aggressor rather than the patron who had struck him, or that their infliction of physical harm upon plaintiff was negligent rather than intentional. Whether the evidence supported any such inferences, however, is irrelevant. Plaintiff's proof admitted of no other inference than that defendants' employees' offensive touching of plaintiff, if it occurred at all, was intentional and not inadvertent. That being so, any right to recover for resultant injuries was on the basis of the intentional tort of assault and battery, rather than in negligence. New York has adopted the prevailing modern view that, once intentional offensive contact has been established, the actor is liable for assault and not negligence, even when the physical injuries may have been inflicted inadvertently (Trott v. Merit Dept. Store, 106 A.D.2d 158, 160, 484 N.Y.S.2d 827; Masters v. Becker, 22 A.D.2d 118, 120, 254 N.Y.S.2d 633; Restatement [Second] of...