Gurfein v. Kelly

259 A.D.2d 664, 685 N.Y.S.2d 617, 1999 N.Y. App. Div. LEXIS 2693

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 22, 1999
• Status: Published

Opinion

In an action to recover damages for assault, the plaintiffs appeal from so much of an order of the Supreme Court, Rockland County (Bergerman, J.), dated January 15, 1998, as granted the motion of the defendant Demetrius Delgado for summary judgment dismissing the complaint insofar as asserted against him.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly held that there was no “evidentiary proof that defendant Delgado * * * aided, abetted, encouraged or contributed to causing the incident which resulted in the plaintiff’s injuries”. Moreover, the Supreme Court properly rejected the plaintiffs’ attempt to impose liability on Delgado based upon his plea of guilty to an assault upon Alan Froman, shortly after the assault upon the injured plaintiff occurred, since the assault on Froman “occurred at a different location and subsequent to the assault on the plaintiff”. Accordingly, the Supreme Court properly granted Delgado’s motion for summary judgment (see, Shea v Cornell Univ., 192 AD2d 857; Steinberg v Goldstein, 27 AD2d 955; Lindsay v Lockwood, 163 Misc 2d 228). Bracken, J. P., Sullivan, Altman and McGinity, JJ., concur.