
    Matthew Gambino, Respondent, v Robert Heredia, Appellant, et al., Defendant.
    [836 NYS2d 439]
   In an action to re- cover damages for assault and battery, and negligence, the defendant Robert Heredia appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), entered August 7, 2006, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him and granted the plaintiffs cross motion for summary judgment on the issue of liability as to him.

Ordered that the order modified, on the law, by deleting the provision thereof granting the plaintiffs cross motion for summary judgment on the issue of liability as to the defendant Robert Heredia and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed, without costs or disbursements.

There are issues of fact requiring the denial of summary judgment to both parties to this appeal. Miller, J.P., Mastro, Krausman and Carni, JJ., concur.  