| Smiley v North Gen. Hosp. |
| 2009 NY Slip Op 00630 [59 AD3d 179] |
| February 5, 2009 |
| Appellate Division, First Department |
| Troy Smiley, Respondent, v North General Hospital et al.,Appellants. |
—[*1] Marin Goodman, LLP, New York (Margaret J. Leszkiewicz of counsel), for BurnsInternational Security Services Corporation, appellant. Friedman, Levy, Goldfarb & Weiner, P.C., New York (Ira H. Goldfarb of counsel), forrespondent.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered September 13,2007, which denied defendant North General Hospital's motion for summary judgmentdismissing the complaint and defendant Burns International Security Services Corp.'s crossmotion for summary judgment dismissing the complaint and all cross claims as against it,unanimously reversed, on the law, without costs, and the motion and cross motion granted. TheClerk is directed to enter judgment in favor of defendants dismissing the complaint.
The evidence shows that in April 2003, plaintiff, a psychiatric patient, was allegedly injuredby one of defendant Burns' security guards as he was attempting to leave the psychiatric holdingarea of defendant hospital. A determination had been made that plaintiff, who suffers from anumber of disorders including major depression and explosive mood disorder, posed a danger tohimself and others and had to be admitted to the psychiatric ward. Plaintiff tried to leave thehospital several times, became agitated and abusive towards staff when he was not permitted todo so, and, during one struggle with security guards, allegedly fell or was pushed to the floor,sustaining the knee injury for which he now seeks damages.
This action, commenced in June 2004, is one for assault, and accordingly, is barred by theapplicable one-year statute of limitations (see CPLR 215 [3]). It is well settled that onceintentional offensive contact has been established, the actor is liable for assault and notnegligence inasmuch as there is "no such thing as a negligent assault" (see Trott v MeritDept. Store, 106 AD2d 158, 159 [1985] [internal quotation marks and citation omitted];see Wrase v Bosco, 271 AD2d 440 [2000]). It is undisputed that plaintiff objected to thecontact with the security personnel, and plaintiff's argument that the security personnel usedexcessive force does [*2]not transform this action into one fornegligence (see Mazzaferro v Albany Motel Enters., 127 AD2d 374, 376 [1987]).Concur—Mazzarelli, J.P., Moskowitz, Renwick and Freedman, JJ.