| Gould v Rempel |
| 2012 NY Slip Op 06779 [99 AD3d 759] |
| October 10, 2012 |
| Appellate Division, Second Department |
| Barbara Gould, Respondent, v Scott Rempel,Appellant. |
—[*1] Fred Lichtmacher, New York, N.Y., for respondent.
In an action, inter alia, to recover damages for defamation, assault, and intentional inflictionof emotional distress, the defendant appeals, as limited by his notice of appeal and brief, from somuch of an order of the Supreme Court, Rockland County (Jamieson, J.), entered December 2,2011, as denied that branch of his motion which was pursuant to CPLR 3211 (a) (7) to dismissthe third cause of action, which alleged assault.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendant's motion which was pursuant to CPLR 3211 (a) (7) to dismiss the thirdcause of action is granted.
The plaintiff alleged that on March 7, 2010, while she was on an extended business trip withthe defendant, who was her supervisor, the defendant entered her hotel room uninvited andstarted screaming at her to stay away from another coworker and to do her work. She maintainsthat the defendant's "words and actions were physically intimidating on this occasion; and caused[her] to fear for her personal safety." As a result, she "pleaded with [the defendant] to leave heralone." She also alleged that on March 8, 2010, the following day, the defendant initiated anotherargument with her and screamed "so loudly that his entire face turned beet red, making [the]plaintiff fear for her safety."
The plaintiff commenced this action against the defendant, inter alia, to recover damages forassault. The defendant moved to dismiss the complaint in its entirety and the Supreme Courtdenied that branch of his motion which was pursuant to CPLR 3211 (a) (7) to dismiss the thirdcause of action, which alleged assault.
In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR3211 (a) (7), a "court will 'accept the facts alleged in the complaint as true, accord plaintiffs thebenefit of every possible favorable inference, and determine only whether the facts as alleged fitwithin any cognizable legal theory' " (Nonnon v City of New York, 9 NY3d 825, 827 [2007], quotingLeon v Martinez, 84 NY2d 83, 87-88 [1994]; see Sanford/Kissena Owners Corp. v Daral Props., LLC, 84 AD3d1210, 1211 [2011]).[*2]
To plead a cause of action to recover damages for assault,a plaintiff must allege intentional "physical conduct placing the plaintiff in imminentapprehension of harmful contact" (Bastein v Sotto, 299 AD2d 432, 433 [2002]; seeFlamer v City of Yonkers, 309 NY 114 [1955]; Marilyn S. v Independent Group Home Living Program, Inc., 73 AD3d892, 894 [2010]; Fugazy vCorbetta, 34 AD3d 728, 729 [2006]; Cotter v Summit Sec. Servs., Inc., 14 AD3d 475, 475 [2005]).While "[a]n action for an assault need not involve physical injury, but only a grievous affront orthreat to the person of the plaintiff" (Di Gilio v Burns Intl. Detective Agency, 46 AD2d650, 650 [1974]; see Reichle v Mayeri, 110 AD2d 694 [1985]), words, without somemenacing gesture or act accompanying them, ordinarily will not be sufficient to state a cause ofaction alleging assault (see Carroll v New York Prop. Ins. Underwriting Assn., 88 AD2d527, 527 [1982]). Here, the plaintiff did not sufficiently plead that the defendant engaged in suchconduct that would have caused her to become apprehensive of an imminent harmful or offensivecontact (see e.g. Marilyn S. v Independent Group Home Living Program, Inc., 73 AD3dat 894; Cotter v Summit Sec. Servs., Inc., 14 AD3d at 475; see also Hassan v MarriottCorp., 243 AD2d 406, 407 [1997]). Further, she failed to allege intent on the part of thedefendant (see Flamer v City of Yonkers, 309 NY 114 [1955]; PJI 3:2).
Accordingly, the Supreme Court should have granted that branch of the defendant's motionwhich was pursuant to CPLR 3211 (a) (7) to dismiss the third cause of action. Dillon, J.P.,Dickerson, Austin and Miller, JJ., concur.