Salemeh v. Toussaint

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered June 3, 2004, which, inter alia, granted the motion of defendants-respondents for summary judgment dismissing the complaint as against them, modified, on the law, to the extent of denying defendant McCann partial summary judgment on the first, second, third and fifth causes of action, alleging assault, battery, trespass and prima facie tort, respectively, reinstating these claims against McCann individually, and otherwise affirmed, without costs. Intentional tort claims against Local 100 were properly dismissed because plaintiff security guard failed to plead that the entire membership of Local 100 authorized in advance, or subsequently ratified, the alleged assault upon him (Martin v Curran, 303 NY 276, 282 [1951]; Duane Reade, Inc. v Local 338 Retail, Wholesale, Dept. Store Union, UFCW, AFL-CIO, 17 AD3d 277 [2005]). Plaintiff’s argument that the stringent pleading and evidence requirements for maintaining an action against an 412 unincorporated association, such as Local 100, should be relaxed is more appropriately directed to the Legislature (see Martin at 282). The essence of plaintiff’s remaining causes of action against Local 100, although labeled as sounding in negligence, is assault and thus they were properly dismissed as well. “[0]nce intentional offensive contact has been established, the actor is liable for assault and not negligence” (Panzella v Burns, 169 AD2d 824, 825 [1991]). “[A] lack of care ‘does not convert the action from intentional tort to negligence’ ” (Messina v Matarasso, 284 AD2d 32, 36 [2001]; see also Trott v Merit Dept. Store, 106 AD2d 158, 160 [1985]). However, the order on appeal incorrectly dismissed the entire complaint against McCann individually, when only partial summary judgment as to certain causes of action was sought in the underlying motion. Since excessive relief was granted, the order is modified, and the complaint reinstated, to that extent, as against McCann individually. Concur—Andrias, J.P., Friedman, Nardelli and Malone, JJ.