Opinion
2003-03844.
Decided February 17, 2004.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County (Franco, J.), dated March 26, 2003, as denied those branches of his motion which were for partial summary judgment on the issue of liability on his first and second causes of action.
Jonah Grossman, New York, N.Y. (Lawrence B. Lame of counsel), for appellant.
Cartiglia, Connolly Russo, Mineola, N.Y. (Lynne M. Nolan and Joseph Belevich of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, THOMAS A. ADAMS and SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied that branch of the plaintiff's motion which was for partial summary judgment on his negligence cause of action as he failed to establish as a matter of law that the defendant's conduct "fell far below any permissible standard of due care" ( Andre v. Pomeroy, 35 N.Y.2d 361, 365; see Alotta v. City Hosp. Center at Elmhurst, 134 A.D.2d 391).
In addition, the Supreme Court properly denied that branch of the plaintiff's motion which was for partial summary judgment on his cause of action to recover damages for battery. "The elements of a cause of action [to recover damages] for battery are bodily contact, made with intent, and offensive in nature" ( Zgraggen v. Wilsey, 200 A.D.2d 818, 819; see Laurie Marie M. v. Jeffrey T.M., 159 A.D.2d 52, 55, affd 77 N.Y.2d 981; Masters v. Becker, 22 A.D.2d 118). The plaintiff failed to establish, as a matter of law, that the bodily contact was offensive, that is, "wrongful under all the circumstances" ( Zgraggen v. Wilsey, supra; see Goff v. Clarke, 302 A.D.2d 725).
As the evidence submitted by the plaintiff failed to establish the absence of a triable issue of fact, summary judgment was properly denied without considering the sufficiency of the defendant's opposition papers ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320).
ALTMAN, J.P., KRAUSMAN, ADAMS and TOWNES, JJ., concur.