Dennis v. Stout

24 A.D.2d 461, 260 N.Y.S.2d 325, 1965 N.Y. App. Div. LEXIS 3986

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 1965
• Status: Published

Opinion

In an action by an infant and his father to recover damages for personal injury and loss of services, in which the amended complaint alleged the defendant’s negligence (first and third causes of action) and an intentional assault and battery by him upon the infant plaintiff (second and fourth causes of action), the defendant appeals, as limited by his brief, from an order of the Supreme Court, Rockland County, dated March 5, 1965 and entered March 8, 1965 in Westchester County, which granted his motion for “reargument” of plaintiffs’ renewed motion for summary judgment and which adhered to the court’s prior decision granting said renewed motion as to the second and fourth causes of action and directing an assessment of damages with respect thereto. Order affirmed, with $10 costs and disbursements. While an order denying reargument is not appealable, an order granting reargument and adhering to the original decision (such as the one here) ordinarily supersedes the original order and is appealable. The defendant therefore properly limited his brief to the order made on reargument and properly abandoned his notice of appeal from the earlier order, dated February 14, 1964 and entered February 20, 1964 upon the prior decision. The record, including the additional affidavits submitted upon the defendant’s subsequent motion for reargument, discloses that there is no issue of fact raised as to the second and fourth causes of action. Defendant’s only attempted justification for his assault was that the infant plaintiff’s remark had been uttered in a challenging or provocative manner. But no “ provocative act, conduct, insult, or word, if unaccompanied by an overt act of hostility, will justify an assault no matter how offensive or exasperating the provocative conduct may be ” (Albicocco v. Nicoletto, 11 A D 2d 690, affd. 9 N Y 2d 920; see, also, Eaton v. Laurel Delicatessen Corp., 5 A D 2d 590, affd. 5 N Y 2d 1029; Goodwill Advertising Co. v. State Liq. Auth., 40 Misc 2d 886, affd. 19 A D 2d 928). Beldock, P. J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.