| Sander v Home Depot |
| 2009 NY Slip Op 50853(U) [23 Misc 3d 137(A)] |
| Decided on May 5, 2009 |
| Appellate Term, First Department |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Plaintiff appeals from a judgment of the Civil Court of the City of New York, New York
County (Arthur F. Engoren, J.), entered March 6, 2008, after a nonjury trial, in favor of
defendant dismissing the complaint.
Per Curiam.
Judgment (Arthur F. Engoren, J.), entered March 6, 2008, affirmed, without costs.
In this action to recover damages for civil battery, the trial court's express finding that "the alleged incident did not occur as claimed by plaintiff" is supported by a fair interpretation of the trial evidence. This finding rested in large measure upon matters of credibility, which the court, sitting as fact-finder, was uniquely situated to make. In any event, even if the incident occurred as alleged by plaintiff, there would be no basis to impose liability upon defendant for the violent acts attributed to its employee (see White v Hampton Mgt. Co., LLC., 35 AD3d 243 [2006]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 05, 2009