Opinion
(982) CA 01-00608.
September 28, 2001.
(Appeal from Order and Judgment of Supreme Court, Erie County, Joslin, J. — Summary Judgment.)
PRESENT: PIGOTT, JR., P.J., GREEN, HAYES, BURNS AND LAWTON, JJ.
Order and judgment unanimously affirmed without costs.
Memorandum:
Plaintiff commenced this action to recover damages for injuries he sustained when he was assaulted by defendant Alon Brenner, the boyfriend of Stephanie Sutton (defendant). Plaintiff alleges that defendant negligently or intentionally caused the assault by making false and misleading statements to Brenner concerning a sexual encounter between defendant and plaintiff. Supreme Court properly granted the motion of defendant seeking summary judgment dismissing the complaint against her. Assuming, arguendo, that defendant made the alleged false and misleading statements to Brenner, we conclude that her conduct was not a proximate cause of plaintiff's injuries ( see, Fariello v. City of New York Bd. of Educ., 199 A.D.2d 461, 462). Thus, the causes of action against defendant founded upon negligence are without merit ( see, Fariello v. City of New York Bd. of Educ., supra, at 462). With respect to the causes of action against defendant founded upon intentional conduct, defendant established her entitlement to judgment as a matter of law by submitting proof that she neither encouraged Brenner to assault plaintiff ( see, Shea v. Cornell Univ., 192 A.D.2d 857, 858) nor otherwise aided, abetted or contributed to the assault ( see, Gurfein v. Kelly, 259 A.D.2d 664, 665; Fariello v. City of New York Bd. of Educ., supra, at 463), and plaintiff failed to raise a triable issue of fact. "More than mere conjecture is required to directly link [defendant] to the assault and suggest complicity" ( Shea v. Cornell Univ., supra, at 858; see, Steinberg v. Goldstein, 27 A.D.2d 955, 955-956). Similarly, the proof submitted by defendant establishes that she is not liable for the assault under the theory that she acted in concert with Brenner ( see, Shroff v. Failla, 229 A.D.2d 1031, 1032; Fariello v. New York City Bd. of Educ., supra, at 463), and plaintiff failed to raise a triable issue of fact with respect to that theory.