18 A.D.3d 363
N.Y. App. Div.
2005

Ana Sola, Respondent, v William S. Swan et al., Appellants.

Supreme Court, Appellate Division, First Department, New York

2004

794 NYS2d 902

Marilyn Shafer, J.

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered on or about April 5, 2004, which, insofar as appealed from, denied defendants’ motion for summary judgment dismissing plaintiff‘s causes of action for battery and assault, unanimously affirmed, with costs.

Issues of fact exist as to whether the individual defendant touched plaintiff without her consent in a manner that was offensive and intended to arouse apprehension, rendering viable plaintiff‘s causes of action for battery (see Messina v Matarasso, 284 AD2d 32, 34-35 [2001]) and assault (see Trott v Merit Dept. Store, 106 AD2d 158, 159 [1985]).

CONCUR—TOM, J.P., MAZZARELLI, ANDRIAS, FRIEDMAN AND CATTERSON, JJ.