Opinion
155101/14
01-07-2015
Marco Sneider, Plaintiff v. AB Green Gansevoort, LLC, ABG STANDARD OPERATOR, LLC, and DIPEN NAYAK, Defendants
For Plaintiff: Law Office of Bryan Swerling 15 Maiden Lane Suite 2005 New York, N,Y. 10038 For Defendant Dipen Nayak: Raiser & Kenniff, P.C. 300 Old Country Road Suite 351 Mineola, N.Y. 11501 For Defendants AB Gansevoort, LLC and ABG Standard Operator, LLC: Hoey King Epstein Prezioso 55 Water Street 29th floor New York, N.Y. 10041
For Plaintiff:
Law Office of Bryan Swerling
15 Maiden Lane
Suite 2005
New York, N,Y. 10038
For Defendant Dipen Nayak:
Raiser & Kenniff, P.C.
300 Old Country Road
Suite 351
Mineola, N.Y. 11501
For Defendants AB Gansevoort, LLC and ABG Standard Operator, LLC:
Hoey King Epstein Prezioso
55 Water Street
29th floor
New York, N.Y. 10041
Nancy M. Bannon, J.
On February 23, 2013, the plaintiff, a patron at the Biergarten at the Standard Hotel in Manhattan, was struck in the face by defendant Dipen Nayak. He suffered facial fractures, lacerations and other injuries and required surgery. Nayak was arrested and charged with assault and harassment. On March 4, 2014, in the Criminal Court, New York County, he pled guilty to violating Penal Law § 240.20, disorderly conduct, in exchange for a conditional discharge, with 20 days of community service, a $250 fine and a mandatory surcharge. In his plea allocution, the transcript of which was submitted by the plaintiff, Nayak admitted that he punched the plaintiff in the face with the intent to cause physical injury and did in fact cause such injury. In addition, Nayak admitted that he did so without justification and thus had no such affirmative defense. The Certificate of Disposition indicates that Nayak satisfied the payment conditions, and the case was adjourned to March 3, 2015, for sealing. The defendant did not appeal the conviction or move to vacate his plea.
On or about May 21, 2014, the plaintiff commenced this civil action against Nayak, and defendants AB Green Gansevoort,LLC, and ABG Standard Operator, LLC, (ABG) the owner and operator, respectively, of the establishment. In his complaint, the plaintiff alleges, inter alia, that Nayak, a fellow patron, became intoxicated, belligerent, aggressive and violently attacked him. He seeks damages upon a theory of intentional tort as against Nayak, and claims that ABG was negligent and liable under the Dram Shop Act. See General Obligations Law § 11-101; Alcoholic Beverage Control Law § 65(2).
Defendant Nayak moves to dismiss the complaint as against him for failure to state a cause of action (CPLR 3211[a][7]). The gravamen of his motion is that the plaintiff's allegation that he "violently attacked" him is insufficient to establish either battery or assault. This argument is wholly without merit. "To recover damages for battery, a plaintiff must prove that there was a bodily contact, that the contact was offensive, i.e. wrongful under all of the circumstances, and intent to make the contact without the plaintiff's consent." Higgins v Hamilton, 18 AD3d at 436 (2nd Dept. 2005). Any "intentional offensive contact" can constitute civil assault. Cagliostro v Madison Square Garden, Inc., 73 AD3d 534, 535 (1st Dept. 2010). The plaintiff's allegations allege that and more. To the extent the complaint does not expressly state that plaintiff experienced a "reasonable apprehension of imminent harmful conduct" (Okali v Paul Hastings, LLP, 117 AD3d 539, 540 (1st Dept. 2014), this does not warrant dismissal since the complaint does allege that, prior to the physical attack, Nayak became belligerent and aggressive and the plaintiff's affidavit indicates that the pleadings can be further amplified.
Nayak counters that "there is nothing in the complaint to debunk the notion that Nayak simply lost his balance and stumbled into plaintiff." This is belied by Nayak's own plea allocution, wherein he admits striking the with intent to cause injury and concedes that he had no justification for doing so. Further, the plaintiff has demonstrated that defendant Nayak's guilty plea should be given collateral estoppel effect in this subsequent civil proceeding on the issue of Nayak's liability. See Abdelzaher v Sallustio, 120 AD3d 1160 (2nd Dept. 2014); Maiello v Kircher, 98 AD3d 481 (2nd Dept. 2012); National Bank of Pakistan v Basham, 148 AD2d 399 (1st Dept. 1989).
It is well settled that in determining a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged as true, accord the nonmoving party the benefit of every favorable inference, and determine whether the facts as alleged fit within any cognizable legal theory. See Leon v Martinez, 84 NY2d 83 (1994); Uzzle v Nunzie Court Homeowners Ass'n, Inc., 70 AD3d 928 (2nd Dept. 2010). Applying this liberal standard to the instant complaint, the motion of defendant Dipen Nayak to dismiss it as to him must be denied.
The court notes that Nayak had asserted an additional ground for dismissal under CPLR 3211(a)(5), arguing that the action was time-barred since the tort claim alleged against him is governed by a one-year statute of limitations and that the claim accrued on February 23, 2013. However, CPLR 215(8) provides that in a civil action against a criminal defendant arising from the same event, the plaintiff shall have "at least one year from the termination of the criminal action as defined in [CPL 1.20] in which to commence the civil action." CPL 1.20(16) provides that a criminal action is terminated upon "imposition of sentence or some other final disposition." As stated above, Nayak's sentence was imposed on March 4, 2014, and the instant action was commenced two months later. Further, the conditional discharge agreed to by Nayak terminates on March 3, 2015, when it is sealed upon proof of him fulfilling all requirements of that sentence, including no re-arrests for one year. That year has not yet passed. Thus, the instant action is far from time-barred. The same analysis applies to the co-defendants. See Alford v St. Nicholas Holding Corp., 218 AD2d 622 (1st Dept. 1995). In any event, Nayak appears to withdraw his argument under CPLR 3211(a)(5) in a footnote in his Reply Memorandum of Law.
To the extent the plaintiff purports to cross-move for summary judgment, that motion is denied as procedurally improper. See CPLR 2214, 2215.
Accordingly, and upon the foregoing papers, and after oral argument on the motion, it is
ORDERED that the motion of defendant Dipen Nayak to dismiss the complaint pursuant to CPLR 3211(a)(7) is denied, and it is further,
ORDERED that all parties shall appear for a preliminary conference on March 5, 2015, at 9:30 a.m.
This constitutes the Decision and Order of the court.
Dated: January 7, 2015_______________________,
JSC