To prove a claim for negligent overcrowding of a confined
space, plaintiffs must show inability to move freely or to find
safe haven within the crowd. See Greenberg v. Sterling
Doubleday Enters., L.P., 240 A.D.2d 702, 660 N.Y.S.2d 33, 34
(N.Y.App.Div. 1997); Palmieri v. Ringling Bros. & Barnum &
Bailey Combined Shows, 237 A.D.2d 589, 655 N.Y.S.2d 646, 646
(N.Y.App.Div. 1997); Hsieh v. New York City Transit Auth.,
216 A.D.2d 531, 628 N.Y.S.2d 767, 768 (N.Y.App.Div. 1995); Benanti
v. Port Auth. of N.Y. & N.J., 176 A.D.2d 549, 574 N.Y.S.2d 729,
730 (N.Y.App.Div. 1991); Ryan v. New York, 7 A.D.2d 298,
182 N.Y.S.2d 616, 617-18 (N.Y.App.Div. 1959).
Marriott's reliance on the proposition that Sawyer failed to
present facts necessary to prove a negligent overcrowding claim
is misplaced. Sawyer's claim is that Marriott failed to maintain
order in the lobby crowd; not that Marriott failed to keep that
crowd sufficiently small to fit into the lobby. Sawyer's claim
properly invokes the duty to protect guests and patrons from
foreseeable harms, and summary judgment for Marriott is
D. Wight's Summary Judgment Motion
Wight moves for summary judgment on grounds that Sawyer's
negligence action against him is a means of avoiding the expired
one year statute of limitations that applies to intentional
torts. The Court grants Wight summary judgment of Sawyer's
1. Statutes of Limitations
There is a one year statute of limitations for assault and
battery claims in New York. N.Y. C.P.L.R. § 215(3) (Consol.
2001). New York has a three year statute of limitations for
personal injury caused by negligence. Id. § 214(5). Statutes
of limitations are substantive laws which Federal Courts sitting
in diversity must apply. Quinn v. Teti, No. 99-9433, 2000 WL
1616806, **1-2, 2000 U.S.App. LEXIS 27210, at *4-5 (2d Cir. Oct.
2. Intentional Torts Pled as Negligence
New York does not recognize negligent battery. Wrase v.
Bosco, 271 A.D.2d 440, 706 N.Y.S.2d 434, 435 (N.Y.App.Div.
2000); Schetzen v. Robotsis, 273 A.D.2d 220, 709 N.Y.S.2d 193,
194 (N.Y.App.Div. 2000); Wertzberger v. City of New York,
254 A.D.2d 352, 680 N.Y.S.2d 260, 261 (N.Y.App.Div. 1998).
Accordingly, "once intentional offensive contact has been
established, the actor is liable for . . . [battery] and not
negligence." Schetzen, 709 N.Y.S.2d at 194 (quoting
Wertzberger, 680 N.Y.S.2d at 261 (internal quotations
omitted)); Wrase, 706 N.Y.S.2d at 435.
Plaintiffs may not plead untimely intentional tort claims as
negligence claims to avoid the one year statute of limitations
applicable to intentional torts. Wrase, 706 N.Y.S.2d at 435;
Schetzen, 709 N.Y.S.2d at 194; see Wertzberger, 680 N.Y.S.2d
at 261; Pistolesi v. Nationwide Mut. Fire Ins. Co., 223 A.D.2d 94,
644 N.Y.S.2d 819, 820 (N.Y.App.Div. 1996). Therefore, once
intentional offensive contact has been established, a one year
statute of limitations applies to the action, regardless of how
it is pled. See Wrase, 706 N.Y.S.2d at 435; Schetzen, 709
N.Y.S.2d at 194; see also Wertzberger, 680 N.Y.S.2d at 261;
Pistolesi, 644 N.Y.S.2d at 820.
Wight intentionally punched Sawyer on January 16, 1998.
(Levine Aff. in Opp. Ex. G; Scher Aff. ¶ 9.) Punching is
intentional offensive contact that renders Wight liable for
battery and not negligence. See Wrase, 706 N.Y.S.2d at 435;
Schetzen, 709 N.Y.S.2d at 194; Wertzberger, 680 N.Y.S.2d at
261. Sawyer's claim is therefore subject to a one year statute
of limitations. See Wrase, 706 N.Y.S.2d at 435; Schetzen,
709 N.Y.S.2d at 194; see also Wertzberger, 680 N.Y.S.2d at
261; Pistolesi, 644 N.Y.S.2d at 820. That one year statute of
limitations expired on either January 16, 1999 (one year from
the date of the incident), or March 10, 2000 (one year from the
day Wight was acquitted on the criminal charges). See N.Y.
C.P.L.R. § 215(3).
Sawyer did not commence the instant action until October 24,
2000. (Scher Aff. Ex. 1.) Accordingly, even if the facts and
inferences are construed in Sawyer's favor, Howley, 217 F.3d
at 150-51, his claim is untimely as a matter of law. See N.Y.
C.P.L.R. § 215(3); Wrase, 706 N.Y.S.2d at 435; Schetzen, 709
N.Y.S.2d at 194; Wertzberger, 680 N.Y.S.2d at 261. Therefore,
because Sawyer failed to prove an element on which he will bear
the burden at trial (the timeliness of his claim), Celotex
Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986), Wight is entitled to summary judgment. See FED. R.
CIV. P. 56.
E. Sawyer's Cross-Motion for Summary Judgment
Sawyer has cross-moved for summary judgment of Wight's
counterclaim for assault and battery on grounds that Wight's
counterclaim is time-barred. The Court grants Sawyer summary
judgment of Wight's cross-motion.
Under New York law, "claims and defenses that arise out of the
same transaction as a claim asserted in the complaint are not
barred by the Statute of Limitations, even though an independent
action by defendant might have been time-barred at the time the
action was commenced." Bloomfield v. Bloomfield, 97 N.Y.2d 188,
192-93, 738 N.Y.S.2d 650, 652-53, 764 N.E.2d 950 (2001);
Messinger v. Mount Sinai Med. Ctr., 279 A.D.2d 344,
720 N.Y.S.2d 13, 14 (N.Y.App.Div. 2001). However, otherwise
time-barred counterclaims may only be interposed to offset
claims contained in the complaint. N.Y. C.P.L.R. § 203(d)
(Consol. 2001); Town of Amherst v. County of Erie, 247 A.D.2d 869,
668 N.Y.S.2d 848, 849 (N.Y.App.Div. 1998).
Wight's counterclaim against Sawyer for assault and battery
would be time-barred just as Sawyer's intentional tort claims
are. See DISCUSSION Sec. D.2. supra. Accordingly, Wight's
counterclaim may only remain to offset Sawyer's claims against
Wight. See N.Y. C.P.L.R. § 203(d) (Consol. 2001); Town of
Amherst, 668 N.Y.S.2d at 849.
However, the Court already disposed of Sawyer's claims against
Wight. Therefore, there is nothing for Wight's untimely claims
to offset, and summary judgment for Sawyer of Wight's
counterclaim is granted.
Marriott's motion is DENIED. Both Sawyer's and Wight's motions