| Scollo v Nunez |
| 2009 NY Slip Op 01973 [60 AD3d 840] |
| March 17, 2009 |
| Appellate Division, Second Department |
| Gianfranco Scollo et al., Respondents, v Alexander Nunezet al., Defendants, and Joseph McMahon et al., Appellants. |
—[*1] Quirk and Bakalor, P.C., New York, N.Y. (Jeanne M. Boyle of counsel), for appellant KevinDonaghy. Purcell & Ingrao, P.C., Mineola, N.Y. (Ralph P. Franco, Jr., of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant Kevin Donaghyappeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County(Dorsa, J.), dated August 3, 2007, as denied that branch of his motion which was for summaryjudgment dismissing the fourth cause of action insofar as it was based upon a theory of liabilityfor concerted action and aiding and abetting an alleged assault and battery, and the defendantJoseph McMahon separately appeals, as limited by his brief, from so much of the same order asdenied that branch of his separate motion which was for summary judgment dismissing the thirdcause of action insofar as it was based upon a theory of liability for concerted action and aidingand abetting the alleged assault and battery.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
In response to the prima facie showing by the moving defendants of entitlement to summaryjudgment, the Supreme Court properly found that there are triable issues of fact as to whether theappellants acted tortiously pursuant to a tacit agreement to assault or batter the plaintiffsGianfranco Scollo and Maurizio Scollo (see Abid v Edwards, 8 AD3d 510, 511 [2004]; Weldon vRivera, 301 AD2d 934, 935 [2003]; Herman v Wesgate, 94 AD2d 938, 939 [1983];Skewes v Infranca, 5 AD3d662, 662-663 [2004]; cf. [*2]Prough v Olmstead,210 AD2d 603, 603-604 [1994]; Gaige v Kepler, 303 AD2d 626, 627-628 [2003];Fariello v City of New York Bd. of Educ., 199 AD2d 461, 463 [1993]; Steinberg vGoldstein, 27 AD2d 955, 955-956 [1967]). Similarly, there exist triable issues of fact as towhether the appellants knowingly provided substantial assistance in furtherance of the allegedbattery (see Wilson v DiCaprio, 278 AD2d 25, 26 [2000]; Restatement [Second] of Torts§ 876 [b]). Skelos, J.P., Ritter, Florio and Miller, JJ., concur. [See 16 Misc 3d1118(A), 2007 NY Slip Op 51469(U).]