Summary
holding that defendant had no duty where "[t]here was no evidence of a pattern of criminal activity or of even one similar incident involving different patrons"
Summary of this case from Gray v. Denny's Corp.Opinion
May 28, 1992
Appeal from the Supreme Court, Bronx County (Douglas McKeon, J.).
On January 11, 1987 at 12:30 A.M., plaintiff was seriously injured when he was shot three times by another patron, an off-duty correction officer, following a verbal confrontation at defendants movants' McDonald's Restaurant located on 161st Street and River Avenue, across the street from Yankee Stadium. At the time of the officer's criminal act, the restaurant was crowded with patrons and there was an absence of security personnel.
While movants defendants restaurant owners were required to exercise reasonable care for the protection of patrons on their premises (see, Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507), the unexpected altercation between plaintiff and the off-duty correction officer is not a situation that movants could reasonably have been expected to have anticipated or prevented (Garofalo v. Henrietta Italia, 175 A.D.2d 580; see, Iannelli v Powers, 114 A.D.2d 157, lv denied 68 N.Y.2d 604). There was no evidence of a pattern of criminal activity (see, Camacho v Edelman, 176 A.D.2d 453; Carroll v. Ar De Realty Corp., 167 A.D.2d 216) or of even one similar incident involving different patrons (cf., Lindskog v. Southland Rest., 160 A.D.2d 842). In view of plaintiff's failure to raise a material triable issue of fact concerning whether movants owed a duty to protect plaintiff against such an unexpected and sudden assault, the IAS court properly granted the movants' motion.
Concur — Sullivan, J.P., Milonas, Kupferman, Ross and Smith, JJ.