Bergen v. Shapiro

129 A.D.2d 669, 514 N.Y.S.2d 429, 1987 N.Y. App. Div. LEXIS 45353

Opinion

In an action to recover damages, inter alia, for assault and battery, the defendant Walter Shapiro appeals from an order of the Supreme Court, Kings County (Shaw, J.), dated January 21, 1986, which granted the plaintiff’s motion for partial summary judgment against him, severed the action insofar as it is asserted against the codefendant Mary Shapiro, ordered an inquest on damages, and denied his cross motion to dismiss the plaintiff’s first cause of action which alleged assault and battery.

Ordered that the order is affirmed, with costs.

It is clear that the appellant’s conviction for attempted manslaughter in the first degree arising out of the same events as those of the instant action establishes his civil liability for assault and battery under the doctrine of collateral estoppel (see, e.g., Merchants Mut. Ins. Co. v Arzillo, 98 AD2d 495). Thus, the court was correct in granting the plaintiff’s motion for partial summary judgment against that defendant.

Furthermore, the court’s denial of the appellant’s cross motion to dismiss the assault cause of action on the ground that the plaintiff failed to allege intentional conduct was correct. The plaintiff’s allegation that the appellant "fired a gun at [her] and caused her to be shot” is sufficient to support the denial of that motion (see, Marx v Edison Elec. Illuminating Co., 201 App Div 607, 609-610; see also, Guggenheimer v Ginzburg, 43 NY2d 268, 275; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3013:13). Thompson, J. P., Brown, Niehoff and Rubin, JJ., concur.