Moncion v. Lyons

Moncion v Lyons (2022 NY Slip Op 51375(U)) [*1] Moncion v Lyons 2022 NY Slip Op 51375(U) [77 Misc 3d 139(A)] Decided on December 23, 2022 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on December 23, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ 2021-142 RI C Betty Moncion, Appellant, against Vanessa Lyons, Malena Lyons and Fatima Lyons, Respondents. Betty Moncion, appellant pro se. Charles W. Marino, for respondents. Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Joy F. Campanelli, J.), entered April 3, 2018. The judgment, after a nonjury trial, dismissed the complaint. ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial. In this action, plaintiff seeks to recover the principal sum of $25,000 based on injuries she sustained when she was allegedly assaulted and battered by defendants. At a nonjury trial, plaintiff, who was self-represented, testified that, at the time of the incident at issue, she lived on the eighth floor of an apartment building and defendant Vanessa Lyons lived with her daughters, defendants Malena Lyons and Fatima Lyons, on the sixth floor of the same building. On August 30, 2016, plaintiff returned to her apartment with her teenage daughter. On the elevator, one of the daughter defendants began insulting plaintiff. When the elevator stopped at the sixth floor, that defendant called to her mother, defendant Vanessa Lyons, who joined her on the elevator with her other daughter. Plaintiff testified that the three defendants then physically attacked her. Plaintiff's daughter telephoned the police, who came and called an ambulance. Plaintiff was taken to the hospital, where she was found to have sustained a fracture to her foot and an injury to or near her ear. Plaintiff testified that, as a result of the injuries she had sustained in the attack, she continued to experience pains and had a problem with her ears. The court did not admit into [*2]evidence the uncertified records plaintiff had brought to court or the photographs on plaintiff's telephone. After plaintiff completed the presentation of her direct case, defense counsel moved to dismiss the complaint on the ground that plaintiff had failed to present any admissible proof of her physical injuries or of her monetary damages, and neither cross-examined plaintiff nor presented any testimony. The court dismissed the action, upon a finding that plaintiff had failed to prove a prima facie case. In a supporting decision, the court stated: "Plaintiff failed to adequately respond to Defendants' discovery demands as previously ordered by the court. In addition, Plaintiff failed to present any proof in admissible form of the damages that she allegedly sustained." We note that the record before this court does not contain any motion to compel plaintiff to provide discovery or an order disposing of such a motion. " 'To sustain a cause of action to recover damages for assault, there must be proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact. To recover damages for battery, a plaintiff must prove that there was bodily contact, that the contact was offensive, and that the defendant intended to make the contact without the plaintiff's consent' " (Kuznitz v Funk, 187 AD3d 1006, 1006 [2020], quoting Bastein v Sotto, 299 AD2d 432, 433 [2002]; see also Jeffreys v Griffin, 1 NY3d 34, 41, n 2 [2003]; Marilyn S. v Independent Group Home Living Program, Inc., 73 AD3d 895, 897 [2010]; Cerilli v Kezis, 16 AD3d 363, 364 [2005]). Plaintiff's unopposed testimony, that defendants had purposefully attacked her in the elevator and had harmed her, was sufficient to establish, prima facie, a cause of action for assault and battery. Thus, even if plaintiff had failed to establish any physical injury, she would have been entitled, at the minimum, to nominal damages based on her unopposed testimony of assault and battery (see generally Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 143-144 [2017]). In addition, although, as noted by the Civil Court, plaintiff failed to establish any monetary damages, punitive damages may be available in a case such as this, where the conduct in question evidences a high degree of moral culpability (see Feldman v Knack, 170 AD3d 667, 670 [2019]), or is "intentional, grossly reckless, wanton, or malicious" (Khan v Flynn, 60 Misc 3d 132[A], 2018 NY Slip Op 51009[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). As the record demonstrates that plaintiff established, prima facie, her entitlement to nominal and/or punitive damages, we conclude that the Civil Court erred in dismissing the action and, thus, a new trial is required. Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial. ALIOTTA, P.J., and TOUSSAINT, J., concur. WESTON, J., dissents and votes to affirm the judgment in the following memorandum: The majority reverses the judgment and grants plaintiff a new trial on the ground that the Civil Court erred in requiring plaintiff to submit proof of her damages. Specifically, the majority notes that "punitive damages may be available in a case like this" and that plaintiff would have, at least, been entitled to nominal damages. Plaintiff did not seek punitive damages or argue that [*3]she was entitled to nominal damages at trial, and she did not raise these arguments on appeal either. The majority circumvents the procedural fundamentals of this court by deciding this appeal on grounds that were not raised by either party below or on appeal (see generally Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d 45, 54 [2014]; Pamco Indus. v Medical Plaza Assoc., 231 AD2d 504 [1996]; Marshall v New York City Health & Hosps. Corp., 186 AD2d 542, 543-544, [1992]). This runs afoul of our basic notion of fair play and should be avoided. Appellate courts "are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made" (Misicki v Caradonna, 12 NY3d 511, 519 [2019]). By deciding this appeal on a ground of its own creation, the majority has effectively denied defendants the "opportunity. . . to be heard on a question which they had no reason to believe was part of the [appeal]" (Grant v Cuomo, 130 AD2d 154, 176 [1987], affd 73 NY2d 820 [1988]). In my opinion, while this is a sympathetic case, it is a waste of judicial resources to require a new trial when plaintiff has not provided a basis for this court to reverse the judgment. Accordingly, I vote to affirm. ENTER: Paul Kenny Chief Clerk Decision Date: December 23, 2022