Uzenski v. Fitzsimmons

Appellate Division of the Supreme Court of New York

Uzenski v. Fitzsimmons

10 A.D.2d 890, 201 N.Y.S.2d 358, 1960 N.Y. App. Div. LEXIS 10412

Appellate Division of the Supreme Court of the State of New York·Decided April 27, 1960·Published

Opinion

In an action to recover damages for assault, the defendant appeals: (1) from an order of the Supreme Court, Queens County, entered January 25, 1960, granting plaintiff’s motion for summary judgment striking out defendant’s answer; and (2) from an order of the same court entered on the same day, denying his motion for leave to reargue plaintiff’s motion for summary judgment. Order granting summary judgment reversed, with $10 costs and disbursements, and motion for summary judgment denied. While the record of defendant’s conviction of the crime of assault in the third degree is admissible, it does not establish sufficiently the essential elements of the cause of action alleged, so as to warrant summary judgment. (Schindler v. Royal Ins. Co., 258 N. Y. 310; Everdyke v. Esley, 258 App. Div. 843; cf. Sims v. Sims, 75 N. Y. 466, 471, 472; Voltz v. Blackmar, 64 N. Y. 440, 444-445.) Appeal from order denying reargument dismissed. Such order is not appealable. Nolan, P. J., Beldock, Ughetta, Christ and Brennan, JJ., concur. [21 Misc 2d 148.]

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In an action to recover damages for assault, the defendant appeals: (1) from an order of the Supreme Court, Queens County, entered January 25, 1960, granting plaintiff’s motion for summary judgment striking out defendant’s answer; and (2) from an order of the same court entered on the same day, denying his motion for leave to reargue plaintiff’s motion for summary judgment. Order granting summary judgment reversed, with $10 costs and disbursements, and motion for summary judgment denied. While the record of defendant’s conviction of the crime of assault in the third degree is admissible, it does not establish sufficiently the essential elements of the cause of action alleged, so as to warrant summary judgment. (Schindler v. Royal Ins. Co., 258 N. Y. 310; Everdyke v. Esley, 258 App. Div. 843; cf. Sims v. Sims, 75 N. Y. 466, 471, 472; Voltz v. Blackmar, 64 N. Y. 440, 444-445.) Appeal from order denying reargument dismissed. Such order is not appealable. Nolan, P. J., Beldock, Ughetta, Christ and Brennan, JJ., concur. [21 Misc 2d 148.]

Uzenski v. Fitzsimmons, 10 A.D.2d 890, 201 N.Y.S.2d 358, 1960 N.Y. App. Div. LEXIS 10412 (N.Y. Ct. App. 1960).

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