Opinion
2018-10525 Index No. 610868/15
12-09-2020
Christopher ALI, appellant, v. MILLER'S ALE HOUSE, INC., respondent.
Kujawski & Kujawski, Deer Park, N.Y. (Mark C. Kujawski of counsel), for appellant. Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Paul M. Tarr of counsel), for respondent.
Kujawski & Kujawski, Deer Park, N.Y. (Mark C. Kujawski of counsel), for appellant.
Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Paul M. Tarr of counsel), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated August 3, 2018. The order granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained as the result of an assault by an unidentified assailant while at the bar on the premises owned by the defendant. The defendant's motion for summary judgment dismissing the complaint was granted, and the plaintiff appeals. We affirm.
A possessor of real property is under a duty to maintain reasonable security measures to protect those lawfully on the premises from reasonably foreseeable criminal acts of third parties (see Nallan v. Helmsley–Spear, Inc., 50 N.Y.2d 507, 518–519, 429 N.Y.S.2d 606, 407 N.E.2d 451 ; Velez v. Pacific Park 38 Sixth Ave., LLC, 183 A.D.3d 590, 591, 121 N.Y.S.3d 618 ; Bryan v. Crobar, 65 A.D.3d 997, 999, 885 N.Y.S.2d 122 ). However, the possessor's duty to control the conduct of persons on its premises arises only when it has the opportunity to control such conduct, and is reasonably aware of the need for such control (see Velez v. Pacific Park 38 Sixth Ave., LLC, 183 A.D.3d at 591, 121 N.Y.S.3d 618 ; Oblatore v. 67 W. Main St., LLC, 169 A.D.3d 705, 706, 91 N.Y.S.3d 714 ; Kranenberg v. TKRS Pub, Inc., 99 A.D.3d 767, 768, 952 N.Y.S.2d 215 ). Thus, the possessor has no duty to protect patrons against unforeseeable and unexpected assaults (see Velez v. Pacific Park 38 Sixth Ave., LLC, 183 A.D.3d at 591, 121 N.Y.S.3d 618 ; Oblatore v. 67 W. Main St., LLC, 169 A.D.3d at 706, 91 N.Y.S.3d 714 ; Giambruno v. Crazy Donkey Bar & Grill, 65 A.D.3d 1190, 1192, 885 N.Y.S.2d 724 ).
Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the assault on the plaintiff was unforeseeable and unexpected (see Giambruno v. Crazy Donkey Bar & Grill, 65 A.D.3d at 1192, 885 N.Y.S.2d 724 ; Millan v. AMF Bowling Ctrs., Inc., 38 A.D.3d 860, 861, 833 N.Y.S.2d 173 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Scharff v. L.A. Fitness Intl., LLC, 139 A.D.3d 929, 930, 30 N.Y.S.3d 574 ).
Accordingly, we agree with the Supreme Court's determination granting the defendant's motion for summary judgment dismissing the complaint.
RIVERA, J.P., AUSTIN, COHEN and CONNOLLY, JJ., concur.