Keller v. Papavram

191 A.D.2d 1043, 595 N.Y.S.2d 157

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 12, 1993
• Status: Published

Opinion

—Order unanimously reversed on the law without costs and motion denied. Memorandum: Supreme Court improperly granted summary judgment to plaintiff on her first cause of action for damages for personal injuries caused by negligence. The evidence submitted by plaintiff in support of the motion does not establish, as a matter of law, that, in causing injuries to plaintiff, defendant acted negligently rather than intentionally. Evidence that defendant pleaded guilty to assault in the third degree under Penal Law § 120.00 does not prove that he acted negligently. A person is guilty of assault in the third degree under subdivision (1) of Penal Law § 120.00 when, ”[w]ith intent to cause physical injury to another person, he causes such injury to such person.” Under subdivision (2) of that section, he "is guilty of assault in the third degree when * * * [h]e recklessly causes physical injury to another person.” Because the record does not show under which subdivision defendant pleaded, it cannot be determined from the plea whether defendant acted negligently or intentionally. (Appeal from Order of Supreme Court, Monroe County, Siracuse, J. — Summary Judgment.) Present — Callahan, J. P., Green, Fallon, Boomer and Boehm, JJ.