ADDITIONAL CASES Robert Rossiter, Plaintiff v. Giuliano Mineo, Defendant; 151840/2019 DECISION AND ORDER PROCEDURAL HISTORY Plaintiff Michele Harding (“Plaintiff” or “Harding”) commenced this Action on against Defendants Robert Rossiter (“Rossiter”) and Giuliano Mineo (“Mineo”) on May 20, 2019 (“Harding Complaint”). Harding alleges that on August 5, 2016, Rossiter invited her to his residence located at 198 Utter Avenue (hereinafter the “Premises”). Rossiter allegedly got into a verbal argument with his neighbor Mineo (“Mineo”), who was standing in the backyard of his residence at 196 Utter Avenue, Staten Island NY 10303. Harding maintains that she suffered serious injuries after a physical altercation took place between Rossiter and Mineo in front of the Premises. In her first cause of action against Mineo, Harding asserts that he “negligently, wrongfully, willfully, maliciously, recklessly, physically touched and/or grabbed” her. Under her second cause of action, Harding claims that Mineo “recklessly physically touched and/or grabbed her” and “with great force recklessly, physically touched and/or grabbed and laid hold” of her. Mineo allegedly beat her and touched her “in a hostile and/or offensive manner” and “negligently assaulted and battered” her. Harding makes similar allegations against Rossiter in her third cause of action, in which she states that Rossiter “with great force recklessly, physically touched and/or grabbed and laid hold” of her. Harding states in her Complaint that Rossiter also touched and “beat” her “in a hostile and/or offensive manner” without her consent and “negligently assaulted and battered” her. In her fourth cause of action against both Mineo and Rossiter, Harding maintains that the facts set forth in the Complaint constitute a prima facie tort. Defendant Mineo filed an Answer to the Harding Complaint on June 26, 2019, in which he denied Harding’s allegations and brought cross-claims against Defendant Rossiter for indemnification and/or contribution. On August 15, 2019, Defendant Rossiter filed an Answer to the Harding Complaint, in which he set forth several affirmative defenses and brought a cross-claim again Mineo for indemnification and contribution. On August 2, 2019, Rossiter commenced an Action against Mineo under Index No. 151840/2019 (“Rossiter Complaint”). In his cause of action for negligence, Rossiter alleges that on or about August 5, 2016, Mineo was “negligent, careless and reckless in causing injuries” to Rossiter. According to Rossiter’s second cause of action, on or about August 5, 2019 (sic), Mineo “negligently, carelessly, recklessly, intentionally and for the purpose of causing plaintiff severe emotional distress” conducted himself toward Rossiter “in a manner so shocking and outrageous that it exceeds the bounds of decency.” According to Rossiter, Mineo’s conduct included annoying and harassing him and his household guests, engaging in an “outrageous and lewd act”, provoking arguments, and “physical altercations and fights.” In his third cause of action for private nuisance, Rossiter alleges that Mineo interfered with the right to use and enjoyment of his property. Rossiter also brought causes of action against Mineo for assault and prima facie tort. On September 4, 2019, Mineo filed an Answer to the Rossiter Complaint in which he denied the allegations and brought affirmative defenses of comparative fault and assumption of risk. Mineo moves this Court for an Order pursuant to CPLR §§3211(a)(1),(5) and (7) dismissing the complaints of Harding and Rossiter on the grounds that the causes of action alleged therein are time barred by the statute of limitations and/or they fail to state a cognizable claim upon which relief may be granted (Motion No. 002). According to Mineo, a reading of the Harding Complaint “even in the light most favorable to the plaintiff, reveals that the claims are sounding in assault and battery.” Mineo notes that New York does not recognize a cause for negligent assault and maintains that Harding’s complaint is bound by the one-year statute of limitations set for intentional torts under CPLR §215(3). Mineo maintains that Rossiter’s negligence cause of action is “completely devoid of any facts and simply states in a conclusory fashion” that he was negligent. Mineo further argues that Rossiter’s remaining causes of action fail as a matter of law for failure to state a claim. Mineo states that to the extent Rossiter brought forth any discernable causes of action, such are barred by the statute of limitations. Rossiter moves this Court for an Order dismissing Mineo’s defenses, denying Mineo’s motion to dismiss and granting leave to serve an amended complaint (Motion No. 003). According to Rossiter, Defendant Mineo’s defense under CPLR §3211(a)(1) based on documentary evidence is without merit and has been waived. Rossiter also claims that his Action is not barred by the statute of limitations and it was timely commenced on August 2, 2019, three days before the expiration of the applicable statute of limitations. Rossiter maintains that Mineo’s motion to dismiss should be denied since he gave the Court and parties adequate notice of the occurrence that is the subject of his Action. Rossiter further argues that this Court must dismiss Mineo’s third affirmative defense of lack of in personam jurisdiction over Mineo since he waived such defense by serving an answer and moving for consolidation. Furthermore, Rossiter seeks leave to amend the complaint pursuant to CPLR §3025 to provide further factual support of the allegations in the Rossiter Complaint. Rossiter also moves to dismiss Harding’s third and fourth causes of action against him. (Motion No. 004). Rossiter argues that Harding’s third cause of action is one for an intentional tort and therefore is barred by the statute of limitations. According to Rossiter, Harding’s cause of action for prima facie tort is also barred by the statute of limitations that governs intentional torts and should be dismissed. In her opposition to Motions No. 002-004, Harding argues that her causes of action against both Rossiter and Mineo are not time-barred, since they are based on negligence and not assault or battery. Harding states that the wording of the Complaint and the circumstances described resound in negligence, not an intentional tort. According to Harding, Motions No. 002-004 must be denied as premature since depositions have not yet been held. Harding moves for an Order pursuant to CPLR §3025(b), seeking to amend the complaint to allege negligence (Motion No. 005). Harding asserts that leave to amend pleadings must be freely granted unless the amendment sought is palpably improper or insufficient as a matter of law, or unless prejudice or surprise directly results from the delay in seeking such amendment. Harding argues that since none of these conditions apply here, Motion No. 005 should be granted. DECISION “Upon a motion to dismiss a complaint pursuant to CPLR §3211, a court must take the allegations in the complaint as true and resolve all inferences in favor of the plaintiff.” Morris v. Gianelli, 71 AD3d 965, 967 [2d Dept 2010]. When seeking to have a cause of action dismissed based on the statute of limitations under CPLR §3211(a)(5), a movant must make a prima facie showing that the statute of limitations applies to the cause of action and that the time during which to commence the action has expired. (See Potter v. Zucker Hillside Hosp., 176 AD3d 884, 885 [2d Dept 2019]; Hutchins v. Palmer, 176 AD3d 1037, 1039 [2d Dept 2019]; Campone v. Panos, 142 AD3d 1126, 1127 [2d Dept 2016]; Morris v. Gianelli, 71 AD3d 965, 967 [2d Dept 2010]; Savarese v. Shatz, 273 AD2d 219, 220 [2d Dept 2000]). Once a defendant has made such a showing, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff did in fact commence the action within the applicable limitations period. (See Campone v. Panos, 142 AD3d 1126, 1127 [2d Dept 2016]). “In determining which limitations period is applicable to a given cause of action, the court must look to the substance of the allegations rather than to the characterizations of those allegations by the parties.” Potter v. Zucker Hillside Hosp., 176 AD3d 884, 885 [2d Dept., 2019] (quoting Dray v. Staten Is. Univ. Hosp., 160 AD3d 614, 617 [2d Dept 2018]). A plaintiff who brings a cause of action for an intentional tort is governed by the one-year statute of limitations found in CPLR §215(3), while a plaintiff suing for negligence is bound by the three-year statute of limitations under CPLR §214. It is important to note that New York does not recognize a cause of action for negligent assault. (See Borrerro v. Haks Group, Inc., 165 AD3d 1216, 1217 [2d Dept 2018]; Johnson v. City of New York, 148 AD3d 1126, 1127 [2d Dept., 2017]). “Negligence is distinguished from assault and battery by the absence of that intent which is a necessary ingredient of the latter.” Borrerro v. Haks Group, Inc., 165 AD3d 1216, 1217 [2d Dept 2018]. The Second Department has held that “once intentional offensive contact has been established, the actor is liable for battery, not negligence.” Id. at 1218. (See Messina v. Matarasso, 284 AD2d 32, 36 [1st Dept., 2001] (holding that “once intentional offensive contact has been established, the actor [is not liable for] negligence, even when the physical injuries may have inflicted inadvertently)). Mineo’s Motion to Dismiss the Harding Complaint The Court finds that Mineo has made a prima facie showing that the statute of limitations governing intentional torts under CPLR §215 applies to Harding’s Complaint and that the time to bring her Action expired prior to its commencement. In taking Harding’s allegations as true, it is evident that Harding believed Mineo’s acts were intentional and that he intentionally harmed her. (Compare De La Cruz v. Nour, 134 AD3d 883, 884s85 [2d Dept., 2015]). While describing Mineo’s alleged conduct, Harding states that he “wrongfully, willfully, maliously, recklessly” “touched and/or grabbed” her. He also states that he “with great force recklessly” touched, grabbed her or laid hold of her. Such statements attach a level of intent to Mineo’s alleged acts that cannot be construed as negligence. Therefore, the Court finds that the statute of limitations under CPLR §3211(a)(5) applies and Harding was required to bring her suit within one year of the alleged incident, which was August 5, 2016. Since Harding did not commence her Action until May 20, 2019, Mineo has demonstrated, prima facie, that Harding failed to bring her Action before the statute of limitations expired. The Court further finds that Harding has failed to demonstrate the existence of an issue of fact as to whether she filed within the applicable statute of limitations or that the statute of limitations was tolled or otherwise inapplicable. The Court rejects Harding’s argument that the wording of the Complaint and circumstances described therein sound in negligence. Despite the use of the word “negligence” in the Complaint, the substance of the Harding Complaint cannot be construed as anything but an intentional tort. Harding also cannot bring a claim for negligent assault and battery, since such causes of action are not recognized in New York. Therefore, the Court finds that the Harding Complaint against Mineo is time-barred and is hereby be dismissed pursuant to CPLR §3211(a)(5). Rossiter’s Motion to Dismiss the Harding Complaint The Court hereby finds that Rossiter has made a prima facie showing that the statute of limitations under CPLR §215 applies and Harding failed to bring her Action within one year of the alleged occurrence. As stated above, Harding alleges that Rossiter “with great force recklessly, physically touched and/or grabbed and laid hold” of her. Furthermore, Harding asserts in her Complaint that Rossiter touched and “beat” her “in a hostile and/or offensive manner” without her consent and “negligently assaulted and battered” her. While taking Harding’s allegations against Rossiter as true, the Court finds that the substance of such allegations are those of an intentional tort. Rossiter has demonstrated, prima facie, that the oneyear statute of limitations under CPLR §215 applies and Harding was required to commence her Action within one year of August 5, 2016, the date of the alleged incident. Since Harding did not commence her Action until May 20, 2019, Rossiter has made a prima facie showing that the statute of limitations expired prior to the commencement of Harding’s Action. The Court further finds that Harding has failed to show that an issue of fact exists as to whether she filed before the applicable statute of limitations passed or that the statute of limitations was tolled or otherwise inapplicable. Harding has failed to demonstrate that her causes of action against Rossiter constitute anything but an intentional tort. The Court is unpersuaded by Harding’s attempts to now characterize such allegations as negligence or negligent assault and battery, which New York does not recognize as causes of action. Therefore, the Court finds that Harding failed to sue within the one-year time period set forth in CPLR §215 and her Complaint against Rossiter is hereby dismissed pursuant to CPLR §3211(a)(5). Harding’s Motion to Amend the Complaint The Court has considered Harding’s arguments in opposition and finds them to be unpersuasive. The Court also does not find that Mineo and Rossiter’s Motions are premature. Harding has failed to present case law demonstrating that the Court cannot or should not grant Motions No. 002 and 004 prior to discovery or depositions. The Court further finds that Harding’s Motion to amend her Complaint has been rendered moot based on this Court’s determination that her Action is time-barred. As Plaintiff notes, “in the absence of prejudice or surprise to the opposing party, a motion to amend a pleading should be freely granted unless the amendment is patently insufficient or lacking in merit.” Gomez ex rel. Rodriguez v. Buena Vida Corp., 152 AD3d 497, 498 [2d Dept 2017] (quoting Marcum, LLP v. Silva, 117 AD3d 917, 917 [2d Dept 2014]). (See CPLR 3025[b]). Here, the amendment to add a cause of action for negligence is lacking in merit and patently insufficient since the substance of the allegations is based on an intentional tort. The Court finds that the proposed amendment is patently insufficient and lacking in merit. Therefore, Harding’s Motion to amend is denied. Mineo’s Motion to Dismiss the Rossiter Complaint The Court now turns to Mineo’s Motion to Dismiss the Rossiter Complaint against him based upon CPLR §3211(a)(5). The Court finds that Mineo has met his prima facie burden and demonstrated that the statute of limitations under CPLR §215(3) for intentional torts applies to Rossiter’s causes of action against him. As Mineo correctly states, the Rossiter Complaint contains several conclusory statements and does not provide sufficient details regarding Mineo’s alleged acts. However, even after taking the allegations stated in the Complaint as true, the Court finds that the substance of Rossiter’s causes of action are based in intentional torts, not negligence. Though Rossiter brought a cause of action for negligence, Mineos’ alleged conduct described therein constitutes an intentional tort. The description of Mineo’s alleged actions indicates a level of intent that takes such claims out of the realm of negligence and places them in the category of an intentional tort. Therefore Mineo has shown, prima facie, that the one-year statute of limitations governing intentional torts under CPLR §215(3) applies here. Since the alleged incident took place on August 5, 2016 and Rossiter did not commence his Action until August 2, 2019, Mineo has demonstrated that the statute of limitations expired prior to Rossiter’s commencement of the Action. The Court further finds that Rossiter has failed to demonstrate an issue of fact as to whether the statute of limitations under CPLR §215(3) was tolled or inapplicable or that he timely filed his Action. Based on this Court’s finding regarding the nature of Rossiter’s Complaint, the Court is unpersuaded by Rossiter’s argument in opposition that he timely commenced the Action by filing it within three years of the alleged incident. Rossiter has not sufficiently demonstrated that that the one-year statute of limitation under CPLR §215 does not apply here and has not rebutted Mineo’s prima facie showing. Therefore, the Rossiter Complaint must be dismissed in its entirety pursuant to CPLR §3211(a)(5). Rossiter’s Motion to Dismiss Based upon the Court’s dismissal of the Rossiter Complaint based on CPLR §3211(a)(5), Rossiter’s Motion to Dismiss Mineo’s affirmative defenses is rendered moot. The Court further finds that Rossiter’s Motion for leave to amend the Complaint is also deemed moot. Due to the Court’s determination that Rossiter’s allegations are for intentional torts, an amendment would be patently insufficient and lacking in merit since the Complaint would remain untimely under the statute of limitations. Therefore, Rossiter’s motion for leave to amend the Complaint is hereby denied. CONCLUSION Accordingly, it is hereby ORDERED that Motion No. 002 is granted and the Harding Complaint as against Mineo is dismissed; it is further ORDERED that the Rossiter Complaint is dismissed in its entirety; it is further ORDERED that Motion No. 003 is hereby denied in its entirety; it is further ORDERED that Motion No. 004 is granted and the Harding Complaint as against Rossiter is hereby dismissed; and it is ORDERED that Motion No. 005 to amend the Harding Complaint is hereby denied in its entirety. This constitutes the final Decision and Order of this Court. Dated: December 2, 2020
