Appellate Division of the Supreme Court of New York, 2000

Schetzen v. Robotsis

Appellate Division of the Supreme Court of New York · Decided June 5, 2000

273 A.D.2d 220; 709 N.Y.S.2d 193; 2000 N.Y. App. Div. LEXIS 6269

Cases that cite this one

15 later published cases cite this decision.

Sawyer v. Wight (District Court, E.D. New York 2002)
Panella v. United States Dept. of Homeland Security (District Court, W.D. New York 2025)
Adirondack Insurance Exchange v. Banagos (District Court, E.D. New York 2022)
Borrerro v. Haks Group, Inc. (Appellate Division of the Supreme Court of New York 2018)
McDonald v. Riccuiti (Appellate Division of the Supreme Court of New York 2015)
Peralta-Mera v. Streep (Appellate Division of the Supreme Court of New York 2025)
Joseph v. Delta Air Lines, Inc. (District Court, E.D. New York 2024)
Rinaldi v. Wakmal (Appellate Division of the Supreme Court of New York 2020)
Tong v. Target, Inc. (Appellate Division of the Supreme Court of New York 2011)
Nicholson v. Freeport Union Free School District (Appellate Division of the Supreme Court of New York 2010)
Hernandez v. State (Appellate Division of the Supreme Court of New York 2007)
Doe v. Jacobs (Appellate Division of the Supreme Court of New York 2005)
Allstate Insurance v. Schimmel (Appellate Division of the Supreme Court of New York 2005)
Goetz-Haddad v. Pathmark Supermarkets (Appellate Division of the Supreme Court of New York 2004)
Cannon v. Boniello (Appellate Division of the Supreme Court of New York 2001)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

In an action to recover damages for personal injuries, the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (McCaffrey, J.), dated May 25, 1999, which granted the motion of the defendant Christopher Thurau for summary judgment dismissing the complaint insofar as asserted against him, and (2) an order of the same court, dated September 1, 1999, which granted the separate motions of the defendants Charles Robot-sis and Michael Sulin for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the orders are affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

The plaintiffs’ cause of action, which was couched in terms of negligence, was properly treated as a cause of action to recover damages for an assault. The plaintiffs alleged solely that the defendants “negligently held” or “negligently struck” their minor plaintiff son. On appeal, the plaintiffs contend that their cause of action was not one alleging intentional tort. Contrary to plaintiffs’ contentions, if, based on a reading of the factual *221allegations, the essence of the cause of action is, as here, assault, the plaintiffs cannot exalt form over substance by labeling the action as one to recover damages for negligence (see, Goldberg v Sitomer, Sitomer & Porges, 97 AD2d 114, affd 63 NY2 831, cert denied 470 US 1028; Friedman v Gallinelli, 240 AD2d 699; Trott v Merit Dept. Store, 106 AD2d 158). It is well settled that no cause of action to recover damages for negligent assault exists in New York (see, Wertzberger v City of New York, 254 AD2d 352; Barraza v Sambade, 212 AD2d 655; Fariello v City of New York Bd. of Educ., 199 AD2d 461; Richman v Nussdorf, 203 AD2d 548; Rafferty v Arnot Ogden Mem. Hosp., 140 AD2d 911; see also, Prosser & Keeton, Torts § 10, at 46 [5th ed]), because “ ‘once intentional offensive [contact] has been established, the actor is liable for assault and not negligence’” (Wertzenberger v City of New York, supra, at 352; see, Sanchez v Wallkill Cent. School Dist., 221 AD2d 857; Panzella v Burns, 169 AD2d 824; Mazzaferro v Albany Motel Enters., 127 AD2d 374).

The plaintiffs’ remaining contentions are without merit. Joy, J. P., Sullivan, Friedmann and H. Miller, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.