NELSON BARRETO, plf-res, v. MIRSAD KOTAJ, def, -andT & R CONSTRUCTION COMPANY, def-app

14-101/102. NELSON BARRETO, plf-res, v. MIRSAD KOTAJ, def, -andT & R CONSTRUCTION COMPANY, def-app — Ordered that the motion is granted to the extent of granting appellant leave to appeal as a poor person. Seymour W. James, Jr., Esq., of the Legal Aid Society, Criminal Appeals Bureau (199 Water Street, 3rd Floor, NY, NY 10038, tel# 212 577-3688) is assigned as counsel for the appellant to prosecute the appeal and to serve without compensation. So Order Judgment (Andrea Masley, J.), entered February 15, 2013, reversed, without costs, judgment vacated, and matter remanded for a new trial on the issues of liability and apportionment.

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14-101/102. NELSON BARRETO, plf-res, v. MIRSAD KOTAJ, def, -andT & R CONSTRUCTION COMPANY, def-app — Ordered that the motion is granted to the extent of granting appellant leave to appeal as a poor person. Seymour W. James, Jr., Esq., of the Legal Aid Society, Criminal Appeals Bureau (199 Water Street, 3rd Floor, NY, NY 10038, tel# 212 577-3688) is assigned as counsel for the appellant to prosecute the appeal and to serve without compensation. So Order Judgment (Andrea Masley, J.), entered February 15, 2013, reversed, without costs, judgment vacated, and matter remanded for a new trial on the issues of liability and apportionment.

Plaintiff commenced this personal injury action upon allegations that he was “viciously assaulted” at the building in which he worked as a superintendent by the defaulting individual defendant (Kotaj), an employee of defendant T & R Construction Company (T & R). The trial evidence established, essentially without contradiction, that after complaining repeatedly to T & R about Kotaj’s aggressive, violent and threatening conduct at the building premises, plaintiff was “sucker-punched” by Kotaj, intentional conduct which caused plaintiff to strike his head on the marble floor of the building lobby and suffer severe brain injuries. Despite the obvious and intentional nature of Kotaj’s conduct, the trial court declined defendant’s request to submit the case to the jury on an assault theory, and instead instructed the jury on the law of negligence under PJI 2:71 and fashioned a verdict sheet asking whether Kotaj had acted negligently.

NELSON BARRETO, plf-res, v. MIRSAD KOTAJ, def, -andT & R CONSTRUCTION COMPANY, def-app

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