110 A.D.2d 694 | N.Y. App. Div. | 1985
Treating plaintiffs’ motion to dismiss defendants’ counterclaim to recover damages for assault as a motion for summary judgment, Special Term denied the motion, citing the existence of issues of fact and questions of credibility which would require resolution by a trier of fact. We agree. The affidavits submitted in support of and in opposition to the motion, all by persons with personal knowledge of the events surrounding the alleged assault, establish that substantial questions of fact and issues of credibility exist, thereby precluding the granting of summary judgment. Moreover, in an action to recover damages for assault, physical injury need not be present but only “a grievous affront or threat to the person” (Di Gilio v Burns Intl. Detective Agency, 46 AD2d 650). Gibbons, J. P., Weinstein, Brown and Niehoff, JJ., concur.