From Casetext: Smarter Legal Research

Wertzberger v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Oct 13, 1998
254 A.D.2d 352 (N.Y. App. Div. 1998)

Opinion

October 13, 1998

Appeal from the Supreme Court, Kings County (Hutcherson, J.).


Ordered that the judgment is affirmed, with costs.

The Supreme Court correctly denied the plaintiff's request for a negligence charge. The gravamen of the plaintiff's claim was that the defendant, by its police officers, assaulted her by slapping handcuffs on her wrists and pushing her into a patrol car upon her arrest. It is well settled that no cause of action to recover damages for negligent assault exists in New York ( see, Richman v. Nussdorf, 203 A.D.2d 548; Rafferty v. Arnot Ogden Mem. Hosp., 140 A.D.2d 911), because "once intentional offensive conduct has been established, the actor is liable for assault and not negligence" ( Panzella v. Burns, 169 A.D.2d 824, 825; see, Mazzaferro v. Albany Motel Enters., 127 A.D.2d 374).

Contrary to the plaintiff's contention, the Supreme Court correctly denied her motion to set aside the verdict under CPLR 4404 (a). The jury could have reached its determination on a fair interpretation of the evidence presented, with consideration given to the credibility of the witnesses and the drawing of reasonable inferences therefrom ( see, Cohen v. Hallmark Cards, 45 N.Y.2d 493; Pomaro v. McKeon, 228 A.D.2d 572; Nicastro v. Park, 113 A.D.2d 129; Harris v. Armstrong, 97 A.D.2d 947, affd 64 N.Y.2d 700).

The plaintiff's remaining contentions are either unpreserved for appellate review or without merit.

Ritter, J. P., Santucci, Altman and Krausman, JJ., concur.


Summaries of

Wertzberger v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Oct 13, 1998
254 A.D.2d 352 (N.Y. App. Div. 1998)
Case details for

Wertzberger v. City of New York

Case Details

Full title:BLIMIE WERTZBERGER, Appellant, v. CITY OF NEW YORK, Respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 13, 1998

Citations

254 A.D.2d 352 (N.Y. App. Div. 1998)
680 N.Y.S.2d 260

Citing Cases

Sawyer v. Wight

New York does not recognize negligent battery. Wrase v. Bosco, 271 A.D.2d 440, 706 N.Y.S.2d 434, 435…

McDonald v. Riccuiti

The factual allegations of the third, fourth, and fifth causes of action clearly set forth only intentional…