McLaughlin v. Thaima Realty Corp.

• Decision Date: 15 May 1990
• Parties: John P. McLAUGHLIN et al., Plaintiffs-Appellants, v. THAIMA REALTY CORP., Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 125

555 N.Y.S.2d 125

161 A.D.2d 383

John P. McLAUGHLIN et al., Plaintiffs-Appellants, v. THAIMA REALTY CORP., Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

May 15, 1990.

M.S. Rothman, for plaintiffs-appellants.

E.R. Weiss, for defendant-respondent.

Before SULLIVAN, J.P., and ROSS, ROSENBERGER, KASSAL and WALLACH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (Anita Florio, J.), entered September 30, 1988, which granted defendant's motion for summary judgment to dismiss the complaint, is unanimously reversed, on the law, and, on the facts, motion denied, and, complaint reinstated, without costs.

Order of the same Court and Justice, entered on or about March 14, 1989, which granted plaintiffs' motion to reargue that Court's order of September 30, 1988, and, upon reargument adhered to the original determination and denied plaintiffs' motion for leave to serve an amended complaint, is unanimously modified, on the law, on the facts, and, in the exercise of discretion, to the extent of granting plaintiffs' motion for leave to serve an amended complaint, and, except as thus modified, otherwise affirmed, without costs.

In December 1984, Thaima Realty Corp. (Thaima) owned, and, operated a multiple dwelling (premises), located at 560 West 184th Street, Manhattan. At that time, Thaima employed Mr. Lawrence J. Forello (superintendent), as the superintendent of those premises.

On December 14, 1984, Mr. John P. McLaughlin, an employee of Con Edison, was lawfully on the premises, for the purpose of turning off electrical services to non-paying customers of Con Edison, when he was injured, as a result of an alleged assault by the superintendent.

Thereafter, in June 1985, Mr. and Mrs. McLaughlin (plaintiffs) commenced an action against Thaima (defendant), in the Supreme Court, Bronx County, to recover damages for Mr. McLaughlin's injuries, and, Mrs. McLaughlin's loss of services. The eleventh paragraph of the first cause of action in the complaint alleges (see, Plaintiffs' Appendix on Appeal, at 52), in pertinent part, that Mr. McLaughlin's injuries were "occasioned through and by reason of the carelessness and negligence of the defendant, its agents, servants and/or employees, as well as the result of the assault of said employee [superintendent] without the intent to cause injury ..." [material in brackets added].

Following the joinder of issue, and, discovery, the defendant moved for summary judgment to dismiss the complaint, on the ground that the plaintiffs had improperly pleaded the alleged negligence of the defendant. Plaintiffs opposed. By order, entered September 30, 1988, the Trial Court granted that motion, and, dismissed the complaint.

Subsequently, plaintiffs moved for reargument, and leave to serve an amended complaint. Defendant opposed. By order, entered on or about March 14, 1989, the Trial Court granted reargument, and, upon reargument adhered to its original determination, and, denied plaintiffs leave to serve an amended complaint.

Plaintiffs appeal from both of those Trial Court orders.

The complaint, as mentioned supra, asserts alternate theories of liability, which are negligence, and, assault "without intent to cause injury". CPLR Rule 3014 authorizes a plaintiff to allege alternate and/or inconsistent theories of liability in a complaint (Mitchell v. New York Hosp., 61 N.Y.2d 208, 218, 473 N.Y.S.2d 148, 461 N.E.2d 285 (1984)).

It is well established law that a pleading, although inartfully drawn, should not be dismissed, so long as it sets forth a cause of action ( Kraft v. Sheridan, 134 A.D.2d 217, 218-219, 521 N.Y.S.2d 238 (1st Dept.1987)).

Plaintiffs provided the details of the alleged assault on Mr. McLaughlin in the Examination Before Trial (EBT) testimony of Mr. McLaughlin, the EBT testimony of Mr. Victor Fred, who was Mr. McLaughlin's co-worker, and, who was present at the scene of the incident, and, Mr. McLaughlin's affidavit, which was submitted in opposition to defendant's motion for summary judgment. Our examination of that evidence indicates that, while Mr. McLaughlin was turning off electricity, he was injured on the premises, when defendant's superintendent attacked him, by, inter alia, slamming a door on his right foot, striking him in the back, and, throwing him down a flight of stairs.

Since defendant has moved for summary judgment, and, plaintiffs oppose same, we are required to accept the plaintiffs' pleadings, supra, as true, and, our decision "must be...