Cummins v. Schouten

Kane, J. Appeal (transferred to this court by order of the Appellate Division, Second Department) from a judgment of the Supreme Court (Bergerman, J.) in favor of defendant, entered March 22, 1989 in Rockland County, upon a dismissal of the complaint at the close of plaintiffs’ case. Plaintiffs commenced this action to recover damages for the alleged injuries negligently inflicted upon plaintiff Noel Cummins by defendant during a fight which occurred on May 9, 1984. At trial, plaintiffs introduced defendant’s pretrial testimony as well as testimony of Cummins and another witness, the aggregate of which demonstrated that Cummins and defendant engaged in name calling, together with several minutes of pushing and shoving, followed by Cummins striking or pushing defendant’s arm, after which defendant swung his fist and hit Cummins in the face. Defendant moved to dismiss the complaint at the end of plaintiffs’ proof for failure to establish a prima facie case of negligence. Supreme Court granted the motion and this appeal followed. We affirm. The record clearly demonstrates that defendant’s actions were intentional and therefore cannot form the basis of an action sounding in negligence (see, Andres v Perry, 81 AD2d 848, affd 54 NY2d 795; cf., McGroarty v Great Am. Ins. Co., 36 NY2d 358, 364). Although plaintiffs may have established a prima facie case of intentional tort, they did not plead that cause of action, nor did they move to conform their pleadings to the proof (see, Andres v Perry, supra; see also, Couch v Langan, 63 NY2d 987, 989). Inasmuch as the trial evidence failed to sustain plaintiffs’ negligence cause of action, the complaint was properly dismissed. Judgment affirmed, without costs. Mahoney, P. J., Kane, Yesawich, Jr., and Mercure, JJ., concur.