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COHEN v. DAVIS

May 13, 1996

JUDITH L. COHEN, Plaintiff, against KENNETH L. DAVIS, M.D., NEAL L. COHEN, J.D., and THE MOUNT SINAI MEDICAL CENTER, INC., Defendants.


The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge:

 The plaintiff, the former administrator of the Department of Psychiatry of Mount Sinai Medical Center ("Mount Sinai"), has sued Mount Sinai and two doctors who were employed by Mount Sinai at the time of her termination. The plaintiff initially asserted against Mount Sinai and the doctors intentional tort claims arising out of incidents on the day of her termination. Specifically, she asserted claims against all three defendants for false imprisonment (First Claim), battery (Second Claim), assault and battery (Third Claim), and intentional infliction of emotional distress (Fourth Claim). She also asserted a claim against the doctors for intentional interference with contractual relations (Fifth Claim). Finally, she asserted a claim against Mount Sinai under the False Claims Act, 32 U.S.C. § 3730(h) (Sixth Claim). The defendants moved to dismiss all claims in the complaint except the False Claims Act claim pursuant to Fed. R. Civ. P. 12(b)(6).

 In her memorandum in opposition to the defendants' motion, the plaintiff agreed to withdraw the Fourth Claim for intentional infliction of emotional distress. The plaintiff also submitted a detailed affidavit providing additional allegations to support her intentional tort claims. In their reply papers the defendants agreed to drop their motion to dismiss the plaintiff's claim for unlawful imprisonment provided that the plaintiff files an amended complaint that includes the details alleged in her affidavit. The Court grants the plaintiff leave to file an amended complaint that includes the allegations contained in her affidavit. Accordingly, the defendants now move to dismiss only the plaintiff's claims for assault, assault and battery, and tortious interference with contractual relations. In addition, the defendants move to strike the plaintiff's claim for punitive damages. Because the defendants have addressed in the course of this motion the sufficiency of the plaintiff's allegations contained both in her original complaint and in her affidavit, the Court will determine the adequacy of the pleadings as if the plaintiff had already submitted an amended complaint.

 A court should dismiss a complaint under Fed. R. Civ. P. 12(b)(6) only "if 'it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.'" Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).

 I.

 With respect to the plaintiff's claims for assault and assault and battery as amplified by her affidavit, the plaintiff alleges that Dr. Cohen came into her office to announce that she was fired, and that when she tried to leave the room, Dr. Cohen grabbed her arm to restrain her from leaving. (Complaint P 18.) The plaintiff alleges that this contact was intentional and "unauthorized, unwanted and offensive," and constitutes battery. (Complaint P 33.) The plaintiff also claims that when she left her office, she was pursued by a Mount Sinai security guard who physically blocked her as she sought to leave the Hospital's premises, grabbed her hand, and took her keys. (Complaint P 39.) The plaintiff alleges that this bodily contact was also intentional and "unauthorized, unwanted and offensive." (Complaint P 40.) In addition, the plaintiff alleges that she feared for her bodily safety because "the security guard was much taller and bigger than I am, and pursued me obviously trying to catch and grab me, which he in fact did." (Judith Cohen Aff. at P 13 (Dec. 29, 1996).) The plaintiff alleges that the guard's conduct constitutes assault and battery. The defendants argue that the plaintiff's allegations do not state a claim for battery or for assault and battery.

  A "battery" is an intentional wrongful physical contact with another person without that person's consent. United Nat'l Ins. Co. v. Waterfront N.Y. Realty Corp., 994 F.2d 105, 108 (2d Cir. 1993); Villanueva v. Comparetto, 180 A.D.2d 627, 629, 580 N.Y.S.2d 30, 33 (2d Dep't 1992); Williams v. Port Auth. of N.Y. and N.J., 880 F. Supp. 980, 994 (E.D.N.Y. 1995); see also 6 N.Y.Jur.2d: Assault--Civil Aspects § 1 at 194 (1980). An assault is the intentional placing of another person in apprehension of imminent harmful or offensive contact. United Nat'l Ins., 994 F.2d at 108; Mortise v. United States, 910 F. Supp. 74, 76 (N.D.N.Y. 1995); Williams, 880 F. Supp. at 994; Emanuel v. Barry, 1990 U.S. Dist. LEXIS 14727, No. CV-83-810, 1990 WL 172681, at *2 (E.D.N.Y. Oct. 25, 1990); see 6 N.Y.Jur.2d: Assault--Civil Aspects § 1, at 194 (1980); Restatement (Second) of Torts § 21. Assault and battery occurs when a person is placed in imminent apprehension of harmful or offensive bodily contact and there is an actual use of force. See 6 N.Y.Jur.2d: Assault--Civil Aspects § 1 at 194.

 The defendants first argue that plaintiff's claim for battery against Dr. Cohen must fail as a matter of law because Dr. Cohen's alleged conduct is not objectively offensive.

 The alleged contact "must be one which would offend the ordinary person . . . not unduly sensitive as to his personal dignity. It must, therefore, be a contact which is unwarranted by social usages prevalent at the time and place at which it is inflicted." Restatement (Second) of Torts § 19, cmt. a; 2 N.Y. PJI 20 (Supp. 1996). Here, whether the ordinary person would be offended if someone grabbed her arm to prevent her from leaving a room is an issue of fact that cannot be decided on a motion to dismiss. See Mullen v. Sibley, Lindsay & Curr Co., 51 N.Y.2d 924, 926, 415 N.E.2d 971, 971-72, 434 N.Y.S.2d 982, 983 (1980) (reversing Appellate Division and holding the evidence sufficient to support a jury verdict finding security guard liable for assault and battery where guard grabbed plaintiff by the arm as he attempted to leave a store).

 The defendants also argue that the plaintiff has not stated a claim for assault and battery against the security guard because the guard's alleged conduct is not objectively offensive and because the plaintiff was not in reasonable apprehension of harmful or offensive bodily contact. As with the plaintiff's claim against Dr. Cohen, whether the ordinary person would find the guard's conduct offensive or would be in apprehension of harmful or offensive contact are issues of fact that cannot be resolved on motion to dismiss. Id.

 The defendants' motion to dismiss the plaintiff's claims for battery and for assault and battery is denied.

 II.

 The defendants also move to dismiss the plaintiff's claim for tortious interference with contract. The plaintiff claims that the individual defendants used improper means to cause Mount Sinai to discharge her from her employment. The plaintiff alleges that the doctors made "false and misleading reports about and criticism of" her in order to prevent her from bringing to the attention of Mount Sinai and federal and state regulatory authorities Dr. Davis's alleged possible financial improprieties. (Complaint ...


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