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NY App. Div. Dismisses Plaintiff's Complaint Based on Assault

May 18, 2010

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In Cagliostro v Madison Sq. Garden, Inc., plaintiff claimed to have sustained injuries to his shoulder when he slipped and fell while attending a rock concert at “the world’s most famous arena”. During plaintiff's deposition, plaintiff stated that he slipped and fell due to liquid on the floor near his seat and hurt his back. Plaintiff was approached by defendant’s employee who told plaintiff to sit at an empty aisle seat. Another employee later approached plaintiff and although plaintiff informed him he was in a lot of pain, he grabbed and pulled plaintiff out of the seat and caused plaintiff to fall and hurt his shoulder.

Defendant moved to dismiss plaintiff's complaint on the basis that plaintiff's deposition showed that his injuries were caused by an assault that was time barred. The trial court granted defendant’s leave to amend its answer to include a statute of limitation defense but denied its motion to dismiss plaintiff's complaint stating that "it could not find as a matter of law that plaintiff's negligence claim 'has been completely supplanted by evidence only of an assault.'"

On appeal, the First Department found that the plaintiff's injuries were caused by an assault. The appellate court rejected plaintiff's argument that there was evidence sufficient to show a cause of action for negligent training, supervision, and retention of staff. The trial court’s decision was overturned and defendant's motion to dismiss was granted.

Thanks to Katusia Lundi for her contribution to this post.

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