H. Fitzmore Harris, P.C., New York, NY, for appellant.
Spar & Bernstein, P.C., New York, N.Y. (Kimberly S. Edmonds of counsel), for respondent.
Opinion
In an action to recover damages for personal injuries, the defendant Morais Dicks appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Sher, J.), entered August 19, 2014, as denied his cross motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him or, in the alternative, for summary judgment dismissing the complaint insofar as asserted against him.
ORDERED that the order is affirmed insofar as appealed from, with costs.
“When a party moves to dismiss a complaint pursuant to
CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action. In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ... If the court considers evidentiary
material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one ... [The motion] must be denied unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it” (
Thaw v. North Shore Univ. Hosp., 129 A.D.3d 937, 938,
12 N.Y.S.3d 152 [internal quotation marks omitted];
see
Leon v. Martinez, 84 N.Y.2d 83, 87–88,
614 N.Y.S.2d 972,
638 N.E.2d 511;
“
John Doe 1” v. Board of Educ. of Greenport Union Free Sch. Dist., 100 A.D.3d 703, 705,
955 N.Y.S.2d 600). “ ‘To sustain a cause of action to recover damages for assault, there must be proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact’ ” (
Fugazy v. Corbetta, 34 A.D.3d 728, 729,
825 N.Y.S.2d 120, quoting
Cotter v. Summit Sec. Servs. Inc., 14 A.D.3d 475, 475,
788 N.Y.S.2d 153). Here, the evidentiary material submitted by the defendant Morais Dicks failed to demonstrate that the plaintiff did not have a cause of action against him to recover damages for assault.
With respect to that branch of the cross motion which was for summary judgment, Dicks failed to establish, prima facie, that his physical conduct did not place the plaintiff in imminent apprehension of harmful conduct (see Fugazy v. Corbetta, 34 A.D.3d at 729, 825 N.Y.S.2d 120; Dykstra v. Partridge, 144 A.D.2d 337, 533 N.Y.S.2d 917). Since he failed to meet his initial burden as the movant, the burden never shifted to the plaintiff to raise a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).
Accordingly, the Supreme Court properly denied Dicks's cross motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him or, in the alternative, for summary judgment dismissing the complaint insofar as asserted against him.