PALKER v. MacDOUGAL REST. INC.

8015, 105781/10.

96 A.D.3d 629 (2012)

947 N.Y.S.2d 465

2012 NY Slip Op 5100

JOSEPH PALKER, Respondent, v. MacDOUGAL REST. INC., Doing Business as OFF THE WAGON, Appellant.

Appellate Division of the Supreme Court of New York, First Department.

June 26, 2012.


Supreme Court should have granted defendants' motion in its entirety. Defendant's employee allegedly pushed plaintiff down a flight of stairs. Contrary to plaintiff's contentions, under no fair construction of the complaint or interpretation of plaintiff's own account of the events could the conduct of defendant's employee be deemed negligent. Plaintiff clearly based his action on an alleged offensive touching. Hence, defendant can be liable, if at all, only for assault and...

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