Sneider v. AB Green Gansevoort, decided by the Supreme Court, New York County on January 7, 2015, addresses the pleading requirements for a claim of civil battery, as well as the effect of a criminal conviction on subsequent litigation arising out of the same facts.
On February 23, 2013, the plaintiff, a patron at the Biergarten at the Standard Hotel in Manhattan, was struck in the face by defendant Dipen Nayak. He suffered facial fractures, lacerations and other injuries and required surgery. Nayak was arrested and charged with assault and harassment. On March 4, 2014, in the Criminal Court, New York County, he pled guilty to violating Penal Law § 240.20, disorderly conduct, in exchange for a conditional discharge, with 20 days of community service, a $250 fine and a mandatory surcharge. In his plea allocution, the transcript of which was submitted by the plaintiff, Nayak admitted that he punched the plaintiff in the face with the intent to cause physical injury and did in fact cause such injury. In addition, Nayak admitted that he did so without justification and thus had no such affirmative defense.
Plaintiff sued Nayak, a fellow patron, for battery, alleging that Nayak “became intoxicated, belligerent, aggressive and violently attacked him.” He alleges that the bar was negligent and liable under the Dram Shop Act, General Obligations Law § 11-101.
Nayak moved to dismiss the complaint for failure to state a cause of action under CPLR 3211(a)(7). The court denied the motion, stating:
The gravamen of his motion is that the plaintiff’s allegation that he “violently attacked” him is insufficient to establish either battery or assault. This argument is wholly without merit. To recover damages for battery, a plaintiff must prove that there was a bodily contact, that the contact was offensive, i.e. wrongful under all of the circumstances, and intent to make the contact without the plaintiff’s consent. Any “intentional offensive contact” can constitute civil assault. The plaintiff’s allegations allege that and more. To the extent the complaint does not expressly state that plaintiff experienced a “reasonable apprehension of imminent harmful conduct”, this does not warrant dismissal since the complaint does allege that, prior to the physical attack, Nayak became belligerent and aggressive and the plaintiff’s affidavit indicates that the pleadings can be further amplified.
Nayak counters that “there is nothing in the complaint to debunk the notion that Nayak simply lost his balance and stumbled into plaintiff.” This is belied by Nayak’s own plea allocution, wherein he admits striking the with intent to cause injury and concedes that he had no justification for doing so. Further, the plaintiff has demonstrated that defendant Nayak’s guilty plea should be given collateral estoppel effect in this subsequent civil proceeding on the issue of Nayak’s liability.
Finally, the court rejected defendant’s statute of limitations argument, citing CPLR 215(8), which provides that in a civil action against a criminal defendant arising from the same event, the plaintiff shall have “at least one year from the termination of the criminal action as defined in [CPL 1.20] in which to commence the civil action.” Plaintiff commenced his lawsuit merely two months after the date (March 4, 2014) on which Nayak’s sentence was imposed.