Scollo v Nunez

[*1] Scollo v Nunez 2007 NY Slip Op 51469(U) [16 Misc 3d 1118(A)] Decided on August 3, 2007 Supreme Court, Queens County Dorsa, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 3, 2007
Supreme Court, Queens County

Maurizio Scollo, an infant over the age of 14 years by his mother Rosaria Scollo and Rosario Scollo, Individually, Plaintiffs,

against

Alexander Nunez, an infant over the age of 14 years, John Doe, Jane Doe as Parents and/or Natural Guardians of Alexander Nunez, Francisco Romero-Mellon, Joseph Mcmahon, Kevin Donaghy and David Raneri, Defendants.



22348/04

Joseph P. Dorsa, J.

By notice of motion, defendant Kevin Donaghy (Donaghy), seeks an order of this Court, pursuant to CPLR § 3212, granting him summary judgment and dismissing the complaint as to him.

Defendant, Joseph McMahon (McMahon), files a cross-motion seeking the same relief as to him.

Defendant, David Raneri (Raneri), files a cross-motion seeking the same relief as to him.

Plaintiffs file an affirmation in opposition to all three motions and each defendant files a reply.

The underlying action is based on an incident which took place sometime between midnight and two or three in the morning on October 4, 2003. On that date, or in the late hours of the day before, plaintiffs Gianfranco and Maurizio Scollo (Scollo) traveled, with nine of their friends from Ridgewood, Queens, where they lived to a park in Douglaston, Queens, located in the vicinity of 248th Street and Van Zandt Avenue.

Plaintiffs and their witnesses maintain that the purpose of their trip to that park on that evening was to "talk" to defendant, Alexander Nunez (Nunez), about his treatment of a friend of theirs, one Steve Gagliardo. Plaintiffs allege that they wanted to "resolve" matters between Gagliardo and Nunez; they allege further that Nunez had previously "robbed" Gagliardo on more than one occasion.

It is undisputed that sometime thereafter, plaintiffs' friend, Steven Gagliardo arrived. Plaintiffs convinced Gagliardo to remain in his vehicle. The parties agree that numerous other individuals arrived, primarily from that area. Plaintiffs allege that approximately thirty (30) kids whom they refer to as the "Little Neck" group arrived and that each had weapons of some sort in their hands.

Eventually, Alexander Nunez arrived carrying a bat.

Plaintiffs and Nunez exchanged words and Nunez proceeded to Gagliardo's vehicle which he hit numerous times with a bat. As a result, Gagliardo drove away. As plaintiffs turned to leave, Nunez then accosted each of them with the same bat resulting in serious injuries to each.

Plaintiff, Gianfranco Scollo suffered a skull fracture secondary to blunt head trauma and remained hospitalized for [*2]approximately one month. Maurizio Scollo suffered a right occipital frontal non-displaced skull fracture and was hospitalized over night.

It is undisputed that neither Kevin Donaghy, Joseph McMahon or David Raneri struck either of the plaintiffs. Kevin Donaghy maintains that he was simply there that evening and he didn't see anyone hit anyone with a bat. Joseph McMahon maintains that he arrived that evening with his friend, Chase; that he saw a fight start between two groups of kids; that he saw no one hit anyone else with a bat; and, that he left the area in his friend Chase's vehicle. David Raneri maintains that he was only at the park that evening for a few minutes; that he only saw a verbal confrontation and never an assault, and that he left after he saw people "getting heated."

The plaintiffs themselves were unable to identify specific actions taken by any of the individual defendants filing summary judgment motions herein. A friend and witness who was at the park with plaintiffs, however, gives a conflicting version of events to that claimed by Donaghy, McMahon and Raneri.

Steven Popa, a non-party witness, known to the plaintiffs but not acquainted with defendants prior to that evening, spoke extensively with the New York City Police Department detective investigating the incident. Popa identified all of the named defendants to Det. Gilbert through photo arrays and line-ups. He testified at depositions in this matter on two different occasions. In his first deposition, Popa maintained that all three of the defendants bringing motions herein approached plaintiffs as a group, along with Nunez and Romero-Mellon. He maintained that each of the five defendants had some sort of weapon, such as a bat, beer bottle, or pipe and they were shouting or jeering at the "Scollo" group.

At his second deposition, Mr. Popa was presented with photographs of the named defendants which he apparently utilized to identify which defendants took what actions that he witnessed. He claimed that Donaghy threw a bottle as he was running at the Scollos; that McMahon was holding a beer bottle as he ran in the direction of the Scollos; and, that Raneri had either a pipe or a bat as he ran towards the Scollos. Popa maintained that these actions were prior to Nunez' assault on the Scollos.

Finally, plaintiffs point to McMahon's and Donaghy's testimony that each of them was present at the same friend's house, along with Nunez and Romero-Mellon having a beer or beers prior to going to the park that evening. [*3]

In response, defendant McMahon's counsel argues that plaintiffs' witness, Steven Popa, through his deposition testimony established that McMahon did not assault plaintiffs, throw bottles at plaintiffs, surround plaintiffs or yell encouragement to their co-defendants. (See, para. 2, p. 5, defendant McMahon's reply affirmation). Counsel cites to various pages of Steven Popa's testimony attached to plaintiffs' affirmation in opposition as Exhibit C. The Court notes that none of the pages cited by counsel contains the testimony claimed in said reply.

Defendant Donaghy replies to the testimony of Steven Popa cited by plaintiffs, by asserting that when the defendants were allegedly running towards plaintiffs they were actually running in the direction of the exit of the park, where their vehicles were parked.

Finally, defendant Raneri claims that Steven Popa never identified any specific action taken by him that would constitute "concerted effort," or "aiding, abetting or encouraging" Nunez and Romero-Mellon, but does not address the testimony which identified Raneri as someone holding a pipe or bat as he allegedly approached the Scollo group.

Plaintiffs allege in their affirmation in opposition to defendants' summary judgment motions that their claims against the defendants are based on a: (1) pure negligence theory based on a duty of care owed to plaintiffs by defendants because of a particular relationship; (2) liability based on a theory of concerted action; (3) liability because they aided and abetted Nunez and Romero-Mellon; (4) negligent infliction of emotional distress by surrounding, supporting, aiding, abetting and encouraging Nunez and Romero-Mellon, and finally, (5) failure to intervene on plaintiffs' behalf and stop Nunez from harming them.

"To prove a prima facie case of negligence, a plaintiff must demonstrate the existence of a duty, a breach of that duty, and that the breach of such d\uty was a proximate cause of his or her injuries. (See, Pulka v. Edelman, 40 NY2d 781 (1970); Gordon v. Muchnick, 180 AD2d 714 (1992)). Absent such a duty of care, there is no breach and no liability. (See, Pulka v. Edlamn, supra ; Gordon v. Muchnick, supra ." Engelhart v. County of Orange, 16 AD3d 369, 371, 790 NYS2d 704 (2d Dep't 2005).

Thus, the threshold question herein is whether or not defendants owed a duty to plaintiffs to prevent the harm inflected by Nunez. [*4]

"The question of whether a member or group of society owes a duty of care to reasonably avoid injury to another is of course a question of law for the Courts. Purdy v. Public Adm'n of County of Westchester, 72 NY 1, 8 (1988). Generally, there is no duty to control the conduct of third persons to prevent them from causing injury to others, even where, as a practical matter, the defendants could have exercised such control. (Id. at 8). Yet, there exist special circumstances in which there is sufficient authority and ability to control the conduct of third persons that a duty to do so will be imposed. (Id. at 8, Pulka v. Edelman, supra ., 793)." Id. at 371.

Such relationships can include, for example "...traditional master-servant relationship, the relationship between parent and child, or the relationship between a common carrier and its passengers...." Purdy v. Public Adm'n of County of Westchester, supra . There is no evidence to suggest that such a relationship existed between anyone of the moving defendants and Nunez. Evidence that two of the three might have met for a beer at a mutual friends house before going to the park is insufficient.

Plaintiffs' effort to "create" a special relationship out of the fabric of their second claim, that the defendants acted in concert or in a common scheme or plan, likewise fails to establish a cognizable legal duty. Such a boot strapping approach ignores the necessity of establishing a legal duty in the first instance.

Nor have plaintiffs established that there existed any special relationship between defendants McMahon, Donaghy and Raneri and plaintiffs that would require them to protect plaintiffs. (See, Hanna v. St. Lawrence County, 34 AD3d 1146, 1150; 825 NYS2d 798 (3rd Dep't 2006).

Finally, it has long been established that "...allegations of intentional conduct cannot form the basis of a claim founded in negligence (see, Wertzberger v. City of New York, 254 AD2d 352; Friedman v. Gallinelli, 240 AD2d 699; Cummins v. Schouten, 160 AD2d 1165)..." Dunn v. Brown, 261 AD2d 432, 433, 690 NYS2d 81 (2d Dep't 1999).

"Contrary to plaintiff's contentions... [where] the essence of the cause of action is [acting in concert to commit]... assault... [and aiding, abetting and encouraging] an assault... the plaintiff cannot exalt form over substance by labeling the action as one to recover damages for negligence." (See, Goldberg v. Sitomer, Sitomer and Porges, 97 AD2d 114, aff'd 163 NY2d 831, cert denied 470 US 1028; Friedman v. Gallinelli, 240 AD2d 699; [*5]Trott v. Merit Dep't Store, 106 Ad2d 159)." Schetzen v. Robotsis, 273 AD2d 220, 221, 709 NYS2d 193 (2d Dep't 2000). It is well settled that no cause of action to recover damages for negligent assault exists in New York" (citations omitted) Id. at 221. (See also, Hernandez v. State of New York, 39 AD3d 709, 835 NYS2d 288 [2d Dep't 2007]).

Accordingly, defendants' motion for summary judgment and dismissal are granted as to the third, fourth and fifth causes in the complaint to the extent that the claim is based on a theory of "pure" negligence, negligent infliction of emotion distress or failure to intervene on plaintiffs' behalf because of a special relationship with defendants or plaintiffs.

What remains then are plaintiffs' claims against the moving defendants based on theories that defendants are liable to plaintiffs for a common scheme or plan with co-defendants Nunez and Romero-Mellon, or they aided, abetted, encouraged or supported co-defendants Nunez and Romero-Mellon.

"New York specifically recognizes a cause of action for aiding and abetting an assault and battery (Steinberg v. Goldstein, 27 AD2d 955, 956 (2d Dep't 1967). The elements of aiding and abetting are (1) a wrongful act producing an injury; (2) the defendant's awareness of a role as a part of an overall illegal or tortious activity at the time he provides the assistance; and (3) the defendant's knowing and substantial assistance in the principal violation. (See Lindsay v. Lockwood, 163 Misc 2d 228, 233 [Sup. Ct. Monroe County 1994] quoting Halberstam v. Welch, 705 F2d 472, 477 (DC Cir. 1983])." Wilson v. Dicaprio, NYLJ 10/19/2004, 18 (col. 3).

"Liability for concerted action rests upon the principle that "[a]ll those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify or adopt his acts done for their benefit, are equally liable with him." Bichler v. Eli Lilly Co., 55 NY2d 571, 580 quoting Prosser and Keeton, Torts § 46, at 292 [4th ed]." Vanacore v. Teigue, 243 AD2d 706, 664 NYS2d 604 (2d Dep't 1997).

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact from the case, and such showing must be made by producing evidentiary proof in admissible form" (Santanastasio v. Doe, 301 AD2d 511 [2nd Dep't. 2003]). [*6]

Moreover, to succeed on a motion for summary judgment, the defendant must "...affirmatively [demonstrate] the merit of [their] defense, rather than [point] to gaps in the plaintiff's proof." Pearson v. Parkside Limited Liability, 27 AD3d 539, 810 NYS2d 357 (2d Dep't 2006).

While it may be that plaintiffs' proof in establishing that defendants arrived at the park on that evening having already formed a plan or scheme for the attack is lacking, there are at least triable questions of fact presented by plaintiffs that defendants McMahon, Donaghy and Raneri, at the time they were alleged by Popa to have approached plaintiffs were acting in concert with Nunez and Romero-Mellon, or at the very least "encouraging the wrongdoer" to act. Vanacore, supra .

Accordingly, based on all of the foregoing, the defendants' motions to dismiss plaintiffs' third, fourth and fifth causes of action based on theories of concerted action, aiding, abetting and encouraging co-defendants Nunez and Romero-Mellon to commit assault and battery are denied.

Dated: Jamaica, New York

August 3, 2007

______________________________

JOSEPH P. DORSA

J.S.C.