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GLORIA BARKLEY
SMITH AND CLIFTON SMITH, PLAINTIFFS-APPELLANTS, v. COUNTY OF ERIE, THOMAS HIGGINS, AS SHERIFF OF COUNTY OF ERIE, ERIE COUNTY SHERIFF'S DEPARTMENT, ROBERT
MERTENS, INDIVIDUALLY AND IN HIS CAPACITY AS DEPUTY SHERIFF, KRISTINE MURRAY,
INDIVIDUALLY AND IN HERCAPACITY AS DEPUTY SHERIFF, AND RICHARD C. CANAZZI,
INDIVIDUALLY AND IN HIS CAPACITY AS DEPUTY SHERIFF, DEFENDANTS-RESPONDENTS.
815, CA 02-00102
SUPREME COURT OF NEW YORK,
APPELLATE DIVISION, FOURTH DEPARTMENT
743 N.Y.S.2d 649; 2002 N.Y.
App. Div. Lexis 6226
June 14, 2002, Entered
.
MEMORANDUM AND ORDER
It
is hereby ORDERED that the order so appealed from be and the same hereby is
unanimously affirmed without costs.
Memorandum: Plaintiffs appeal from an order granting defendants' motion
for summary judgment dismissing the complaint except insofar as it sought
summary judgment dismissing the cause of action for false arrest against two
Deputy Sheriffs, defendants Robert Mertens and Kristine Murray. We affirm. Gloria Barkley Smith (plaintiff)
was waiting in line to sign in as a visitor at the Erie County Holding Center
when an argument broke out concerning whether other visitors were cutting in
line. Mertens intervened and, according
to plaintiff, grabbed her and threw her to the ground with excessive force.
According to Mertens, he grabbed plaintiff's arm because plaintiff was about to
strike another visitor, and then Mertens lost his balance and fell to the
ground along with plaintiff. Plaintiff was arrested on a charge of disorderly
conduct that was later dismissed. Plaintiffs commenced this action asserting
causes of action for, inter alia, negligence, false arrest and malicious
prosecution.
Plaintiffs contend that Supreme Court erred in dismissing the negligence
cause of action against Mertens because appellate courts have upheld jury
verdicts finding that defendant peace officers had engaged in the negligent use
of force (see e.g. McCummings v New
York City Tr. Auth., 81 N.Y.2d 923, 925-927, 597 N.Y.S.2d 653, 613 N.E.2d 559,
rearg denied 82 N.Y.2d 706, cert denied 510 U.S. 991). Contrary to plaintiffs'
contention, the fact that in a given case such a jury verdict may have been
upheld does not mandate that the negligence cause of action herein be submitted
to a jury. "New York
has adopted the prevailing modern view that, once intentional offensive contact
has been established, the actor is liable for assault and not negligence, even
when the physical injuries may have been inflicted inadvertently" (
Salimbene v Merchants Mut. Ins. Co., 217 A.D.2d 991, 994, 629 N.Y.S.2d 913 [internal
quotation marks omitted]; see also
Dropick v Rogers, 219 A.D.2d 852, 632 N.Y.S.2d 1009; Kirk v Metropolitan
Transp. Auth., 2001 WL 258605, *11, 2001 U.S. Dist LEXIS 2786, *33-34 [SD NY,
Mar. 14, 2001]; LaLonde v Bates, 166 F. Supp. 2d 713, 719-720). Here, it is undisputed that
Mertens intended to "grab" plaintiff, and we conclude that the court
properly granted that part of defendants' motion seeking summary judgment
dismissing the negligence cause of action against Mertens based on his alleged
use of unnecessary force.
The court also properly granted
that part of defendants' motion seeking summary judgment dismissing the causes
of action against defendants County of Erie, Thomas Higgins, as Sheriff of Erie
County, the Erie County Sheriff's Department and Richard C. Canazzi,
individually and in his capacity as Deputy Sheriff. Defendants established as a
matter of law that the conduct of those defendants alleged in the causes of
action against them was not a proximate cause of the injuries alleged in the
complaint. Furthermore, those defendants established that they assumed
no special duty with respect to plaintiff, and plaintiffs failed to raise an
issue of fact whether the conduct of those defendants "actually lulled
[plaintiff] into a false sense of security, induced [plaintiff] to either relax
her own vigilance or forego other avenues of protection, and thereby placed her
in a worse position than she would have been in had they never assumed [*651]
the duty" ( Clark v Town of Ticonderoga, 291 A.D.2d 597, 599, 737 N.Y.S.2d
412).
We
further conclude that the court properly dismissed the cause of action for
punitive damages. "There is no separate cause of action for punitive
damages," inasmuch as "punitive damages are but an incident of
ordinary damages" ( Pietras v Gol Pak Corp., 131 A.D.2d 239, 242, 520
N.Y.S.2d 683). Plaintiffs may nevertheless be entitled to punitive damages,
based upon a showing of "gross, wanton and willful" conduct as
alleged in the remaining portion of the complaint ( Laks v Springer, 101 A.D.2d
1001, 1001, 476 N.Y.S.2d 951; see also
Buchwald & Assoc. v Rich, 281 A.D.2d 329, 330, 723 N.Y.S.2d 8).