Concepcion v. New York City Health & Hospitals Corp.

Mazzarelli, J.

(dissenting). I would affirm the order appealed on the ground that the court properly declined to issue a charge on apportionment. I would hold that this personal injury claim falls under the exception set forth in CPLR 1602 (5) for actions requiring proof of intent, notwithstanding the fact that the identified assailant was not sued herein. As Justice Saxe states in Chianese v Meier (285 AD2d 315, 322 [decided herewith]) a premises security case, “to establish that the landlord’s negligence was a proximate cause of the assault, the plaintiff must prove the fact of the assault, an intentional act. Accordingly, such actions are best viewed as falling within the category of ‘actions requiring proof of intent,’ and, as a result, within the exception of [CPLR 1602 (5)].” Here, establishing that defendant’s negligence was a proximate cause of plaintiff’s injuries requires that plaintiff prove the intentional act of assault. Thus, application in this case of the exception in CPLR 1602 (5) would eliminate the anomaly recognized by the majority between the recovery afforded a plaintiff in cases where the assailants are identified and those where they are not. The majority’s determination illustrates the inequity expressed by Justice Ellerin in her dissent in Roseboro v New York City Tr. Auth. (286 AD2d 222, 227 [decided herewith]) of allowing “a blameless victim, who cooperates in the vigorous prosecution of a criminal action where the perpetrator is apprehended [to be] penalized by reduction of just compensation for the injuries suffered.”

Williams, J. P., Andrias and Friedman, JJ., concur with Lerner, J.; Mazzarelli, J., dissents in a separate opinion.

Judgment, Supreme Court, Bronx County, entered December 21, 1998, reversed, on the law, without costs, the judgment vacated and the matter remanded to Supreme Court for a new trial as to apportionment only.